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Ordinance No. 15,396 ORDINANCE NO. 15,396 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH HR GREEN, INC.,FOR THE DEVELOPMENT OF A BROADBAND NEEDS ASSESSMENT AND MASTER PLAN FOR THE CITY OF BAYTOWN; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED NINE THOUSAND ONE HUNDRED FIFTY AND N01100 DOLLARS ($109,150,00); 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 HR Green, Inc., for the development of a Broadband Needs Assessment and Master Plan for the City of Baytown. 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 HR Green, Inc., in an amount not to exceed ONE HUNDRED NINE THOUSAND ONE HUNDRED FIFTY AND NO;`100 DOLLARS($109,150.00)for professional services in accordance with the agreement authorized in Section I 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 a'- vote of the City C rcil of the City of Baytown this the 9't'day of March,2021 o��pY�OFy� — ,� ON CAPETILLO, M yor ST: .• y •• •4 e • cIr a ANGELA ItTKSON, APPROVED AS TO F SCOTT LEMONb City Attorney R:-.Karen Anderson.ORDINANCES1202312023.03.091PSAwitbHRGreen4BroadbandNeedsAssessment.doex EXHIBIT "A" AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is entered into by and between. HR Green. 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 following: 1. Market Assessment: Consultant will provide an assessment of the telecommunications environment detailing the location of facilities, types of services,pricing, availability and limitations based on FCC filing information. This will provide a list of providers and a basis to check accuracy of this reported data through the survey and stakeholder meetings. Deliverable: • Report of Findings Market Assessment 2. Asset Research Meetings: Conduct a meeting with providers, a meeting with City Department Ieaders and a meeting with GCCISD leadership to research and evaluate the existing broadband assets and infrastructure related to existing fiber and other broadband technologies in the City's boundaries and GCCISD boundaries. In these meetings, information(with GIS files preferred) will be requested on their existing broadband infrastructure. Deliverable: • Report of Findings of information given by the above entities 3. Engagement Plan: Develop an Engagement Plan in coordination with City staff to define the stakeholder meetings, survey questions, promote a survey and determine ways to engage those who might have barriers to taking the survey. Involvement of the City Communications department will be central to promoting the survey. Promotion will be electronic—if the City desires to promote the survey via printed material or in utility bills, the steps for that will be defined in the engagement plan. No costs for printing or mailing are included in this agreement. Deliverable: • Engagement Plan • 1.;p to five stakeholder meetings (individual or groups) • Report of Findings of information provided by stakeholders 4. Survey: Perform a GIS based internet survey of citizens and businesses with questions defined in the Engagement Plan, focused to evaluate the current usage, needs and supply of broadband communications assets, products and services in the City and identify unserved, under-served and served areas. It is anticipated the questions approved in the Engagement Plan will include questions regarding cellular service in addition to the other topics identified in this task. Deliverables: • GIS based internet survey. • Report of Findings of the survey data. Agreement for Consultinp,Services,Page 1 • Raw survey data in an Excel spreadsheet. 5. Provider Meetings: Conduct a meeting with providers to gain input from existing broadband providers who service the City of Baytown's boundaries and GCCISD boundaries related to service gaps and opportunities. This will either be part of the discussion in the provider meeting in Task I or in a 2nd provider meeting. In total, Consultant anticipates having up to three(3)provider meetings through the course of the project. Deliverable: • Report of Findings of gaps and opportunities as identified by the existing service providers. 6. GIS Map of Existing Assets: Produce a GIS map of the inventory (including Consultant's assessment)of existing broadband, 5G, next generation next generation assets and infrastructure related to the fiber network and other broadband technologies within the City's municipal boundaries and GCCISD boundaries. Data for this map will be gathered from the meetings described in Tasks 1 and 2. Deliverables: • GIS map of existing infrastructure. • Technical Report of strengths and weaknesses of existing assets reported in Tasks 1 and 2. 7. Gap Analysis: Define and evaluate potential gaps in the fiber network routes in City's municipal boundaries and GCCISD boundaries. Deliverables: • GIS map of gaps in the fiber network routes. • Report of Findings of gaps in fiber coverage in the City and GCCISD boundaries. S. Physical Impacts: Identify potential impacts of broadband infrastructure additions on City right-of-way, City-owned conduit, streetlight poles (where pole information is available), traffic lights, existing fiber system. Other assets can be evaluated if mutually agreed upon by the City and Consultant. Deliverable: • Report of Findings of broadband additions on defined City assets. 9. Technology Options: Consultant will provide a report of technology options relative to mechanisms for high-speed internet service delivery (e.g. FTTP, wireless, fiber.wireless hybrid, etc.) including recommendations for the possibilities, including infrastructure and backhaul routes for each recommendation. Deliverable: • Technical Report of technology options 10. Partnership Option Assessment: From the provider and stakeholder meetings, Consultant will provide an assessment of potential infrastructure and operational relationships including the possibilities of public,private, and membership owned companies in geographic proximity to the City. This assessment will include possible public and private networks and backhaul that could be suitable for interconnection. Deliverable: • Report of Findings of potential partners. 11. Community Impacts of Lack of Broadband: Consultant will prepare a report discussing the impacts that broadband issues are having on the City. These impacts could include students not being able to do homework because of broadband issues, geographic areas in which Agreement for Professional Services.Page 2 economic development faces challenges because of lack of broadband, any problems identified in stakeholder meetings that have been caused by broadband concerns. Deliverable: • Report of Findings of challenges caused by broadband issues 12. Funding: Consultant will provide a list of potential funding sources and an analysis of the high-level costs to build fiber in the identified gap areas. This report will include a discussion of why grant funds are needed to make the potential projects financially viable. Deliverable: • Technical Report of potential funding sources and grant needs for defined gaps. 13. 5G Health Impacts: Consultant will provide a report of potential health impacts from 5G wireless technology,including options available to the City to control those impacts. Deliverable: • Technical Report of potential health impacts from 5G 14, Next Steps and Recommendations: Actionable next steps regarding potential broadband connectivity projects that can be implemented as cost-effectively and quickly as possible for the purpose of enabling economic development and citizen connectivity. Deliverable: • Technical Report of possible next steps to improve broadband connectivity which will be included in the Broadband Master Plan. 15. Cellular: Consultant will provide a map of registered towers and their high-level coverage areas. These maps will show expected cellular coverage gaps. This report will include recommended next steps to further understand and improve cellular coverage. Deliverable: • Technical Report of high-level tower locations and cellular coverage 16. Broadband Master Plan: Produce a comprehensive fiber/broadband plan document to include findings of the tasks identified in this Scope section, recommendations and actionable next steps. Deliverable: • Fiber and Broadband Plan document 17. Partnerships: Through the defined stakeholder meetings, Consultant will assess the interest of providers to partner with the City in broadband "infrastructure expansion and the geographic areas where that could be most helpful in improving broadband in the City. When the information in the project has been reported and digested by City leadership and the City has identified the next steps they want to take, Consultant will write a draft RFEI (Request for Expressions of Interest) from providers for them to offer the City specific plans to fill the identified gaps. Consultant will help the City deploy the RFEI, answer questions, receive responses and evaluate responses. The decisions of how to respond to the RFEI will be the City's, but Consultant will provide guidance in the process. Deliverables: • Report of Findings of provider interest and an assessment of those opportunities for the City. • RFEI draft,process assistance and evaluation assistance. This Agreement shall commence on the date of execution by the City Manager and shall Agreement for Professional„Services.Page 3 terminate eighteen (18) months following execution by the City Manager, unless agreed to in writing by both parties. 2. Compensation and Professional Fees a. The City shall pay Consultant the total amount of Ei h -Seven Thousand One Hundred Fifty Dollars ($87 1. 50;00) in installments based upon detailed monthly invoices with final payment due for each task outlined in the Scope of Services upon completion and delivery to the City of deliverables . An additional amount of$5 0�00.00 is allocated for travel and will only be used for mutually agreed upon trips to the City. A contingency amount of$177,000.00 is also allocated to be used for any mutually agreed upon additional tasks at the direction of the City's Representative. b. For an agreed contract amount identified as "Lump Sum," "Not to Exceed" and "Reimbursable," Consultant shalt not exceed the fixed contractual amount without written authorization in the form of a Contract amendment. C. 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. d. 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. e. The City shall pay Consultant the maximum rate permitted by Chapter 2251 of the Texas Government Code on any past due payment not received within 30 days after the payment due date. In accordance with § 2251.043, in a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the City or Consultant, shall pay the reasonable attorney fees of the prevailing party. 3. Personnel of Consultant a. Consultant's Project Manager Consultant shall designate Ken Demlow, to serve as Project Manager for the Work performed under this Agreement. If there is any change of Project Manager , Consultant shall provide thirty (30) days advance written notice to the City's Representative, if reasonably possible. b. Licensed and Registered Professional Engineer Agreement for Professional 3ervices,Page 4 Consultant shall keep full-time registered Professional Engine 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. d. Rejection of Consultant's Employees The City reserves the right to control its workplace. All employees of Consultant who perform Work under this Agreement shall adhere to the City's standards of conduct and decorum. The City reserves the right to dismiss from its premises,and employee of Consultant who does not adhere to these standards. The City reserves the right to dismiss from the Work, any employee of Consultant whose work product is subpar or oherwise unsatisfactory. Any employee of Consultant who is dismissed under this Paragraph shall immediate cease all Work on the Project and shall not return to Work withoout written authorization from the City. 4. Designation and Duties of the City's Representative a. The Assistant to the City Manager 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 use. However,the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Consultant 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 reasonable judgment as a knowledgeable 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. Aereement for Professional Services,Page 5 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 requestor for Work is made by the City. (2) The Work shall be designed and furnished in accordance with the codes and/or standards adopted by city, state, or federal government as of the date that the request for Work is made by the City and shall comply with Texas Department of Licensing and Regulation's rules and regulations. If, during the Term of this Agreement, the codes and/or standards adopted by city, state, or federal government, are amended, updated, revised, or otherwise changed in a manner that impacts the Work or Consultant's ability to complete the Work, the parties may amend this Agreement to expand or contract the Scope of Work referenced in Paragraph I- (5) The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Consultant if superior methods are available. 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 a knowledgeable and qualified broadband consultant 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 shall be performed with the care and skill ordinarily used by members of Consultant's profession practicing under the same or similar circumstances, time and locality. (7) Consultant shall promptly correct any defective services caused by Consultant's negligent acts, errors, or omissions, 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. 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. Agreement for Professional Services,Page 6 7. 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 insurance coverage shall be primary insurance with respect to the City, its officials,employees. Any insurance or self-insurance maintained by the City, its officials, employees 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: 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$300,000 ■ 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 ■ ■ 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. Azreernent for Professional Services,Page 7 b. The following shall be applicable to all policies of insurance required herein. I. 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 canceled except after thirty(30)days prior written notice by mail,has been given to the City, with a ten (10) day exception for non-payment of premium. 5. The City,its officers,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. b. Upon request and without cost to the City, copies of all required insurance policies and/or certificates of insurance shall be furnished to the City. 7. 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. Full policies will not be required. S. Indemnification and Release CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL COSTS, DAMAGES,AND LIABILITY OF EVERY HIND, INCLUDING COURT COSTS, AND REASONABLE ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY TO THE EXTENT CAUSED BY THE NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT'S AGENTS, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY Agreement for Professional Services,Page 8 OVER WINCH 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. 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, and employees from all liabilities,damages,and costs of every kind and character,for any injury to or death of any person and any damage to property that is caused by Consultant's negligent performance of services 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. 9. 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. Agreement for Professional Services,Page 9 10. 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 seven (7) days prior written notice from the City Manager to Consultant of the City's election to do so. Furthermore, the City may terminate this Agreement if Consultant breaches this Agreement by providing seven(7)days prior written notice. 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, Iiens, 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 reasonable diligence and expediency consistent with sound professional practices and 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. Instruments of Services are not intended or represented to be suitable for reuse by the City or others on any other project. Any such use of Instruments of Service without the Consultant's prior written authorization shall be at the City's sole risk and without liability to the Consultant. 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. 11. 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. Pxcept for proprietary data, which we are enjoined from sharing. Agreement for Professional Services,Page 10 12. 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. 13. 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. 14. 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. 15. Verifications If Consultant has ten(10)or more full-time employees and Consultant's total compensation under this Agreement has a value of One-Hundred Thousand Dollars($100,000.00)or more,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. 16. 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. Agreement for Professional Services,Page I I 17. 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 HR Green, Inc.: HR Green, Inc. Attn: Edward Barrett 11011 Richmond Ave. Suite 200 Houston, TX 77042 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_ City and Consultant agree to that all disputes bewteen them arising out of or relating to this Agreement shall be submitted to non-binding mediation unless the parties mutually agree otherwise. Agreement for Professional Services,Page 12 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. 30. Force Majeure The City agrees that the Consutlant is not responsible for damages arising directly or indirectly from any delays for causes beyond the Consultant's control. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather disruptions or other natural disasters or acts of God; fires, riots, war or other emergencies; disease epidemic or pandemic; failure of any government agency to act in a timely manner; failure of performance by the City or the City's contractors or consultants; or discovery of any hazardous substances or differing site conditions. Severe weather disruptions include but are not limited to extensive rain, high winds, snow greater than two (2) inches and ice. Agreement for Professional Services,Page 13 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 JASON REYNOLDS, City Manager ATTEST: ANGELA J'ACKSON, City Clerk APPROVED AS TO FORM: SCOTT LEMOND, City Attorney CONSULTANT: Edward Barrett, HR Green, Inc. -4 A- - WA - (Signature) Edward K. Barret (Printed Name) Vice President (Title) A eement for Professional Services Page 14 STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared Edward K. Barret, in his/her capacity as Vice President, on behalf of such HR Green, Inc.. 1z 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 ✓ day of M/�0-CH , 202,3 EE M CARA C MOSIEA Notary Public in and for the State of Texas ary Aub1iC State o1 TOxa3mm Epiro$07-MZ023jolmy 10 R:IScott\ContractOrofessionai Services Template-Non Grant.docx Agreement for Professional-Services,Page 15 AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is entered into by and between HR Green. 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 following: I. Market Assessment: Consultant will provide an assessment of the telecommunications environment detailing the location of facilities,types of services,pricing, availability and limitations based on FCC filing information. This will provide a list of providers and a basis to check accuracy of this reported data through the survey and stakeholder meetings. Deliverable: + Report of Findings Market Assessment 2. Asset Research Meetings: Conduct a meeting with providers, a meeting with City Department leaders and a meeting with GCCISD leadership to research and evaluate the existing broadband assets and infrastructure related to existing fiber and other broadband technologies in the City's boundaries and GCCISD boundaries. In these meetings, information(with GIS files preferred)will be requested on their existing broadband infrastructure. Deliverable: • Report of Findings of information given by the above entities I Engagement Plan: Develop an Engagement Plan in coordination with City staff to define the stakeholder meetings, survey questions, promote a survey and determine ways to engage those who might have barriers to taking the survey. Involvement of the City Communications department will be central to promoting the survey. Promotion will be electronic—if the City desires to promote the survey via printed material or in utility bills, the steps for that will be defined in the engagement plan. No costs for printing or mailing are included in this agreement. Deliverable: + Engagement Plan • Up to five stakeholder meetings (individual or groups) • Report of Findings of information provided by stakeholders 4. Survey: Perform a GIS based internet survey of citizens and businesses with questions defined in the Engagement Plan, focused to evaluate the current usage, needs and supply of broadband communications assets, products and services in the City and identify unserved, under-served and served areas. It is anticipated the questions approved in the Engagement Plan will include questions regarding cellular service in addition to the other topics identified in this task. Deliverables: • GIS based internet survey. + Report of Findings of the survey data. Agreement for Consulting Services,Page 1 • Raw survey data in an Excel spreadsheet. 5. Provider Meetings: Conduct a meeting with providers to gain input from existing broadband providers who service the City of Baytown's boundaries and GCCISD boundaries related to service gaps and opportunities. This will either be part of the discussion in the provider meeting in Task I or in a 2"d provider meeting. In total, Consultant anticipates having up to three(3)provider meetings through the course of the project. Deliverable: • Report of Findings of gaps and opportunities as identified by the existing service providers. 6. GIS Map of Existing Assets: Produce a GIS map of the inventory (including Consultant's assessment) of existing broadband, 5G, next generation next generation assets and infrastructure related to the fiber network and other broadband technologies within the City's municipal boundaries and GCCISD boundaries. Data for this map will be gathered from the meetings described in Tasks 1 and 2. Deliverables: • GIS map of existing infrastructure. • Technical Report of strengths and weaknesses of existing assets reported in Tasks 1 and 2. 7. Gap Analysis: Define and evaluate potential gaps in the fiber network routes in City's municipal boundaries and GCCISD boundaries. Deliverables: • GIS map of gaps in the fiber network routes. • Report of Findings of gaps in fiber coverage in the City and GCCISD boundaries. 8. Physical Impacts: Identify potential impacts of broadband infrastructure additions on City right-of-way, City-owned conduit,streetlight poles (where pole information is available), traffic lights, existing fiber system. Other assets can be evaluated if mutually agreed upon by the City and Consultant. Deliverable: • Report of Findings of broadband additions on defined City assets. 9. Technology Options: Consultant will provide a report of technology options relative to mechanisms for high-speed internet service delivery (e.g. FTTP,wireless,fiber/wireless hybrid,etc.) including recommendations for the possibilities, including infrastructure and backhaul routes for each recommendation. Deliverable: • Technical Report of technology options 10. Partnership Option Assessment: From the provider and stakeholder meetings, Consultant will provide an assessment of potential infrastructure and operational relationships including the possibilities of public,private, and membership owned companies in geographic proximity to the City. This assessment will include possible public and private networks and backhaul that could be suitable for interconnection. Deliverable: • Report of Findings of potential partners. 11. Community Impacts of Lack of Broadband: Consultant will prepare a report discussing the impacts that broadband issues are having on the City. These impacts could include students not being able to do homework because of broadband issues, geographic areas in which Asreement for Professional Services.Page 2 economic development faces challenges because of lack of broadband, any problems identified in stakeholder meetings that have been caused by broadband concerns. Deliverable: • Report of Findings of challenges caused by broadband issues 12. Funding: Consultant will provide a list of potential funding sources and an analysis of the high-level costs to build fiber in the identified gap areas. This report will include a discussion of why grant funds are needed to make the potential projects financially viable. Deliverable: • Technical Report of potential funding sources and grant needs for defined gaps. 13. 5G Health Impacts: Consultant will provide a report of potential health impacts from 5G wireless technology, including options available to the City to control those impacts. Deliverable: • Technical Report of potential health impacts from 5G 14.Next Steps and Recommendations: Actionable next steps regarding potential broadband connectivity projects that can be implemented as cost-effectively and quickly as possible for the purpose of enabling economic development and citizen connectivity. Deliverable: • Technical Report of possible next steps to improve broadband connectivity which will be included in the Broadband Master Plan. 15. Cellular: Consultant will provide a map of registered towers and their high-level coverage areas. These maps will show expected cellular coverage gaps. This report will include recommended next steps to further understand and improve cellular coverage. Deliverable: • Technical Report of high-level tower locations and cellular coverage 16. Broadband Master Plan: Produce a comprehensive fiber/broadband plan document to include findings of the tasks identified in this Scope section, recommendations and actionable next steps. Deliverable: • Fiber and Broadband Plan document 17. Partnerships: Through the defined stakeholder meetings, Consultant will assess the interest of providers to partner with the City in broadband infrastructure expansion and the geographic areas where that could be most helpful in improving broadband in the City. When the information in the project has been reported and digested by City leadership and the City has identified the next steps they want to take, Consultant will write a draft RFEI (Request for Expressions of Interest) from providers for them to offer the City specific plans to fill the identified gaps. Consultant will help the City deploy the RFEI, answer questions, receive responses and evaluate responses. The decisions of how to respond to the RFEI will be the City's, but Consultant will provide guidance in the process. Deliverables: • Report of Findings of provider interest and an assessment of those opportunities for the City. • RFEI draft,process assistance and evaluation assistance. This Agreement shall commence on the date of execution by the City Manager and shall Agreement for Professional Services, Page 3 terminate eighteen (18) months following execution by the City Manager, unless agreed to in writing by both parties. 2. Compensation and Professional Fees a. The City shall pay Consultant the total amount of Eighty-Seven Thousand One Hundred Fifty Dollars ($87 1. 50.001 in installments based upon detailed monthly invoices with final payment due for each task outlined in the Scope of Services upon completion and delivery to the City of deliverables . An additional amount of$5 0 00.00 is allocated for travel and will only be used for mutually agreed upon trips to the City. A contingency amount of$17,000.00 is also allocated to be used for any mutually agreed upon additional tasks at the direction of the City's Representative. 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. 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. d. 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. e. The City shall pay Consultant the maximum rate permitted by Chapter 2251 of the Texas Government Code on any past due payment not received within 30 days after the payment due date. In accordance with § 2251.043, in a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the City or Consultant, shall pay the reasonable attorney fees of the prevailing party. 3. Personnel of Consultant a. Consultant's Project Manager Consultant shall designate Ken Demlow,to serve as Project Manager for the Work performed under this Agreement. If there is any change of Project Manager , Consultant shall provide thirty (30) days advance written notice to the City's Representative, if reasonably possible. b. Licensed and Registered Professional Engineer Aereement for Professional Services,Page 4 Consultant shall keep full-time registered Professional Engineer 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. d. Rejection of Consultant's Employees The City reserves the right to control its workplace. All employees of Consultant who perform Work under this Agreement shall adhere to the City's standards of conduct and decorum. The City reserves the right to dismiss from its premises,and employee of Consultant who does not adhere to these standards. The City reserves the right to dismiss from the Work, any employee of Consultant whose work product is subpar or oherwise unsatisfactory. Any employee of Consultant who is dismissed under this Paragraph shall immediate cease all Work on the Project and shall not return to Work withoout written authorization from the City. 4. Designation and Duties of the City's Representative a. The Assistant to the City Manager 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 use. However,the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Consultant 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 reasonable judgment as a knowledgeable 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. Aereement for Professional Services Pa.-e 5 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 requestor for Work is made by the City. (2) The Work shall be designed and furnished in accordance with the codes and/or standards adopted by city, state, or federal government as of the date that the request for Work is made by the City and shall comply with Texas Department of Licensing and Regulation's rules and regulations. If, during the Term of this Agreement, the codes and/or standards adopted by city, state, or federal government, are amended, updated, revised, or otherwise changed in a manner that impacts the Work or Consultant's ability to complete the Work, the parties may amend this Agreement to expand or contract the Scope of Work referenced in Paragraph 1. (5) The codes and standards used in the profession set forth minimum requirements.These may be exceeded by the Consultant if superior methods are available. 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 a knowledgeable and qualified broadband consultant 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 shall be performed with the care and skill ordinarily used by members of Consultant's profession practicing under the same or similar circumstances, time and locality. (7) Consultant shall promptly correct any defective services caused by Consultant's negligent acts, errors, or omissions, 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. 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. Agreement for Professional Services,Page 6 7. 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 insurance coverage shall be primary insurance with respect to the City, its officials,employees. Any insurance or self-insurance maintained by the City,its officials, employees 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: 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$300,000 ■ 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 ❑ 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 o Employer's Liability $500,000 ® Waiver of Subrogation required. Azreement for Professional Services Page 7 b. The following shall be applicable to all policies of insurance required herein. I. Insurance carrier for all liability policies must have an A.M. Best Rating of ANJII 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 except after thirty (30) days prior written notice by mail,has been given to the City, with a ten (10) day exception for non-payment of premium. 5. The City,its officers,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, copies of all required insurance policies and/or certificates of insurance shall be furnished to the City. 7. 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. Full policies will not be required. 8. Indemnification and Release CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL COSTS, DAMAGES, AND LIABILITY OF EVERY HIND, INCLUDING COURT COSTS, AND REASONABLE ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY TO THE EXTENT CAUSED BY THE NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT'S AGENTS, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY Agreement for Professional Services,Page 8 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. 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, and employees from all liabilities,damages,and costs of every kind and character,for any injury to or death of any person and any damage to property that is caused by Consultant's negligent performance of services 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. 9. 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. Azreement for Professional Services,Page 9 10. 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 seven (7) days prior written notice from the City Manager to Consultant of the City's election to do so. Furthermore,the City may terminate this Agreement if Consultant breaches this Agreement by providing seven(7)days prior written notice. 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 reasonable diligence and expediency consistent with sound professional practices and 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. Instruments of Services are not intended or represented to be suitable for reuse by the City or others on any other project. Any such use of Instruments of Service without the Consultant's prior written authorization shall be at the City's sole risk and without liability to the Consultant. 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. 11. 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. Except for proprietary data,which we are enjoined from sharing. Agreement for Professional Services,Page 10 12. 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. 13. 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. 14. 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. 15. Verifications If Consultant has ten(10) or more full-time employees and Consultant's total compensation under this Agreement has a value of One-Hundred Thousand Dollars($100,000.00)or more,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. 16. 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 Hams County, Texas. Agreement for Professional Services Page I 1 17. 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 HR Green, Inc.: HR Green, Inc. Attn: Edward Barrett 11011 Richmond Ave. Suite 200 Houston, TX 77042 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 parry. 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 parry 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. City and Consultant agree to that all disputes bewteen them arising out of or relating to this Agreement shall be submitted to non-binding mediation unless the parties mutually agree otherwise. Agreement for Professional Services.Page 12 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. 30. Force Majeure The City agrees that the Consutlant is not responsible for damages arising directly or indirectly from any delays for causes beyond the Consultant's control. For purposes of this Agreement, such causes include,but are not limited to, strikes or other labor disputes;severe weather disruptions or other natural disasters or acts of God; fires, riots, war or other emergencies; disease epidemic or pandemic; failure of any government agency to act in a timely manner; failure of performance by the City or the City's contractors or consultants; or discovery of any hazardous substances or differing site conditions. Severe weather disruptions include but are not limited to extensive rain, high winds, snow greater than two (2) inches and ice. Agreement for Professional Services,Page 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be dee ed to be an origi al, but all of which shall constitute but one and the same Agreement on the/D�ay of 20?1 the date of execution by the City Manager of the City of Baytown. CITY OFBAYTOWN gAYTU n� J ON RE City Manager ATTEST:(IL pF ,�.,.....;✓,T ANGEL A CKSON, APPROVED S FORM: SCOTT LEM ND, City Attorney CONSULTANT: Edward Barrett, HR Green, Inc. -4� AZI (Signature) Edward K.Barret (Printed Name) Vice President (Title) Agreement for Professional Services.Page 14 STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared Edward K. Barret, in his/her capacity as Vice President, on behalf of such HR Green, Inc.. [✓� 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 3""l day of M A 12GH 2023 CARA C MOSIER ` �, _Notary Public.Stata of rotas Notary Public in and for the State of Texas `F Comm.Expires 07-25-2025 Notary to 13122155.0 RAScoMContractsTrofessional Services Template-Non Gmt.doce Agreement for Professional Services,Page 15