Ordinance No. 15,409 ORDINANCE NO. 15,409
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
RENEWING THE CONTRACT OF SMART MATERIALS, INC., FOR THE ANNUAL
CONCRETE AGGREGATE CONTRACT AND AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED
THOUSAND AND N0/100 DOLLARS ($100,000.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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WHEREAS, Smart Materials, Inc., was awarded the Annual Concrete Aggregate Contract on
March 9,2016,pursuant to competitive bidding procedures,which contract included an option by the parties
to renew for additional one-year periods; and
WHEREAS, such contract was renewed on March 23, 2017; April 12, 2018; March 28, 2019;
March 26,2020;March 25,2021; and April 14, 2022; and may be renewed for an additional one-year period;
and
WHEREAS, Smart Materials, Inc., has indicated its willingness to renew the contract for an
additional year under the same terms and conditions; and
WHEREAS, the Administration has reviewed the market conditions and recommends renewal as
being in the best interest of the City; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown hereby renews the contract of Smart
Materials, Inc., for the Annual Concrete Aggregate Contract for an amount not to exceed ONE HUNDRED
THOUSAND AND NO 100 DOLLARS ($100,000.00), and authorizes payment thereof.
Section 2: That the City Manager is hereby granted general authority to approve a decrease or an
increase in costs by FIFTY THOUSAND AND NO 100 DOLLARS ($50,000.00) or less, provided that the
amount authorized in Section 1 hereof may not be increased by more than twenty-five percent(25%).
Section 3: 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 to of the City Council of the City of
Baytown this the 23`d day of March, 2023.
gpYTOW
�oF,•••••°°••.°V T� ANDON CAPETILLO, Mayor
ANGELA CKS +Cjr C`ferk
APPROVED AS T FO OF
SCOTT LEMON ity Attorney
RAKaren Anderson'ORDINANCES 202212022.04.14\RenewAnnualConcreteAggregateContract-SmartMaterials.docx
AGREEfvIFN( ' FOR THE PURCHASE OF As Needed Concrete Aggregate
STATE OF TEXAS 1
C
COUNTY OF HARRIS 5
This Agreement (this "Agreement") is entered into by and between Smart Materials.
Inc(hereinafter "Vendor") and the City of Baytown, a laome-rule municipality located in Harris
and Chambers Counties. Texas (tile
I. Scope
This Agreement is for the purchase of As Needed Concrete Aggregates the "Goods") for and on
behalf of the City. This Agreement shall commence on the date of execution by the City Manager
and shall terminate the earlier of: (a) delivery of the Goods in accordance with paragraph 2: or(b)
twelve (12) months following execution by the City Manager. The Scope of Work from IFE3 086-
23 is attached to this Agreement as Exhibit "A" and is fully incorporated by reference for all
purposes.
2. Price .and Delivery
a. The City shall pay Vender the sum of up to one hundred thousand dollars and 00
cents 6100,000.00) fur the annual as-needed delivery of the Goods as Follows:
i. Coarse Aggregate'/4" or less 3. Off
ii. Coarse Aggregate I ;z- or lesser
iii. Small Aggregate-Pea Gravel__ L_L%71 r11
iv. Fine Agorerrate-Concrete Sand 1 �J -
b. Vendor shall not exceed file Fixed contractual amount without written authorization
in the form of a contract amendment.
c. Vendor shall invoice based upon conforming Goods actually delivered to the City.
Vendor 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 fior services or expenses shall result in Vendor'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 Vendor the maximum rate permitted by Chapter 225 1 of the
Texas Government Code on any past due payment not received within thirty (30)
days after the payment due date. In accordance with § 2251.043. in a formal
administrative orjudicial action to collect an invoice payment or interest dare under
this chapter, the opposing party, which may be the City or Vendor. shall pay the
reasonable attorney lees cif the prevailing, party.
Aereement for the Purchase of Goads.Page I
I. Vendor is not authorized to ship the Goods under reservation and no tender of a bill
of lading will serve as a tender of Goods.
g. The title and risk of loss of the Goods shall nut pass to the City until the City
actually receives and takes possession ofthe Goods at the point or points ofdelivery
in Baytown.Texas.
h. Every tender or delivery of Goods must fully comply with all provisions of this
Agreement as to time of delivery, quality and the like. If a tender is made which
does not fully conform. this shalf constitute a breach and Vendor shall not have the
right to substitute a conforming tender, provided, where the time for performance
has not yet expired, the Vendor may reasonably notify the City of its intention to
cure and may then make a conforming tender within the contract time, but not
afterward unless evidenced by the C'ity's consent executed by the City Manager.
3. Insurance
Vendor 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 purchase of the Goods hereunder by Vendor. its agents, representatives,
volunteers. employees or subcontractors.
a. Vendor's insurance coverage shall be primary insurance with respect to the Cite. 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 Vendor's
insurance and shall not contribute to it. Further, Vendor shall include all
subcontractors, 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 subcontractors and assigns shall he 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:
i. Commercial General Liability
® General Aggregate: $2,000,000
® Products& Completed Operations Aggregate: $2,000,000
® Personal & Advertising Injury: 51.000.000
N 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.
Aereement for the Purchase otGoods.Page 2
ii. Business Automobile Policy
Is Combined Single limits: $I,000,000
0 Coverage for "Any Auto"
Of Waiver of Subrogation required.
iii. Errors and Omissions
® Limit: $1.000,000
® Claims-made form is acceptable
® Coverage will be in force for one(1)year after delivery ofthe Goods
® Waiver of Subrogation required.
iv. Workers' Compensation
® Statutory Limits
l7 Employer's Liability 5500,000
® Waiver of Subrogation required.
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.
ii. Only insurance carriers licensed and admitted to do business in the State of
Texas will be accepted.
iii. Liability policies must be oil occurrence form. Errors and Omissions can
be on claims-made form.
iv. Each insurance policy shall be endorsed to state that coverage shall not be
suspended,voided,canceled or reduced in coverage or in limits except a0er
thirty (30) days prior written notice by mail, return receipt requested, has
been given to the City.
V. 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.
vi. 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.
vii. Upon request and without cost to the City, loss runs (claims listing) of any
and/or all insurance covernees shall be furnished to the City.
yiii. 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
Vendor. Vendor shall proN ide copies of insurance policies and
A_reement for the Purchase of Goods.Page 3
endorsements required hereunder to the City on or before the etftcctive date
of this Agreement.
4. Indemnification and Release
VENDOR 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 VENDOR OR THE VENDOR'S
AGENT, VENDOR UNDER CONTRACT, OR ANOTHER ENTITY
OVER WHICH THE VENDOR EXERCISES CONTROL
(COLLECTIVELY, VENDOR'S PARTIES). IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO, BOTH VENDOR AND
THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS INDEMNITY BY VENDOR TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF
VENDOR'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR
SOLE NEGLIGENCE, AS WELL AS THE VENDOR'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 VENDOR'S PARTIES. IN THE
EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED,
VENDOR FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED
Agreement for the Purchase of Goods,Paee-1
HEREINABOVE SHALL SURVIVE THE TERMINATION AND/ORl
EXPIRATION OF THIS AGREEMENT. II
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 Agreement 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. Vendor 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 Vendor's services to be performed
hereunder. This release shall apply with respect to Vendor's services regardless of
whether said claims, demands, and causes of action are covered in whole or in part
by insurance.
5. Records
Within len (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 relating- to the purchase and delivery of the Goods.
6. Supervision of Vendor
Vendor is an independent contractor; and the Cily neither reserves nor possesses any right to
control the details of the Goods provided by Vendor under the terms of this Agreement.
7. Billing
The City shall have thirty (30) days to pay Vendors invoices from the date of receipt of such
invoices and necessary backup information. All invoices must identify the Goods with specificity
and the date(s) of the Goods delivery. 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. Vendor shall not invoice the City for Goods not provided. Invoices shall be
received by the City no later than sixty(60)calendar days from the date Vendor delivers the Goods
to the City. Failure by Vendor to comply with this requirement shall result in Vendor's invoice being
denied and the City being relieved from any liability for payment of the late invoice.
8. Indebtedness
If Vendor, at any time during the term of this Agreement, incurs a debt. as that 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 Vendor
has incurred a debt, the City's Director of Finance shall immediately notify Vendor in writing. if
Vendor 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 Vender
under this Agreement, and Vendor waives and recowse therelur.
Agreement for the Purchase of Goods.Page 5
9. Verifications
If Vendor has ten (10) or more full-time employees and Vendor's total compensation under this
Agreement has a value crone Hundred Thousand Dollars ($I00,000.00)or more. Vendor makes
the following verifications in accordance with Chapters 2271 and 2274 of the Texas Government
Code:
a. the Vendor 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 Vendor 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 Vendor 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.
10. Governing Law
This Agreement has been made under and shall be governed by the laws ol,the State of Texas.
The parties further agree that performance and all matters related thereto shall be in Harris County,
Texas.
11. 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 Vendor: l
_Svl,vti.V+ hit r_T�
't1-Y-,JK_7-Z!j 7 57-
Agreement for the Purchase of Goods,Page 6
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.
12. No Third-Party Beneficiary
This Agreement shall not bestow any rights upon any third patty, but rather, shall bind and benefit
Vendor and the City only.
13. No Right to Arbitration
Notwithstanding anything to the contrary contained in this Agreement,the City and Vendor hereby
agree that no claim or dispute between the City and Vendor 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 'rexas General Arbitration Act, provided that
in the event that the City is subjected to an arbitration proceeding notwithstanding this provision.
Vendor consents to be joined in the arbitration proceeding if Vendor's presence is required or
requested by the City of complete relief to be recorded in the arbitration proceeding.
14. 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.
15. Complete Agreement
This Agreement represents the entire and integrated agreement between the City and Vendor in
regard to the subject matter hereof and supersedes all prior negotiations, representations of
agreements, 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 Vendor
accept and agree to these terms.
16. No Assignment
Vendor 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.
17, Headings
The headings used in this Agreement are for _-eneral reference only and do not have special
significance.
18. 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 etlecl.
Agrcemem for the Purchasc of Goods. Papa 7
19. 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.
20, 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 de t})ed to b an original, but all of which shall constitute but one
and the same Agreement on the y of ,24 the date of execution by the City ;
Manager of the City of Bayt
CITY OF BAYTOWN
�ftraocr�
A ST: 0AY7..yIVAof Flynt, Ilse, �..
ANGELA J KSOa erk °
T 0r ..
Co
APPROVE A TO FOR
SCOTf LEMOND, City Attorney
Agreement for the Purchase of Goods.Page 8
is
�F
VENDOR:
[Add Vendors Leal Name
(Signature)
0AW1,1 Sri
(Printed Name) {
i
7 r�51G1B1�1�
(Title)
id
Agreement for the Purchase or Goods Page 9
i<
STATE OF TEXAS
§
COUNTY OF FIARRIS§Before me on this day personally appcarcd (//�I
�z.4t-1V PJ in his/her
capacity�Add Title', on behalf of such [Add Vendor's Legal Name],
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 AVLk
Nolary public in and for the Stat of Texas
,. ESA DENISE TAYLOR
1,, Noury Public.Scue of Tr
tT"i�F Com .Expi=01:I7G024
�•'4w F,'� Ndmy ID 12885159.9
CUTY OF BAYTOWN
SPECIFICATIONS
Agreement for the Purchase of Goodsfor the Purchase of Goods,Page 10
ANNUAL CONCRETE AGGREGATE CONTRACT
BID NUMBER: 086-16
SPECIFICATION'S (MINIMUM):
SCOPE: The City of Baytown seeks competitive bids for aggregate delivered. The purpose
of these specifications is to describe the minimum requirements of the City of Baytown for
the Annual Concrete Aggregate Contract. This contract is intended for routine and
continuous usage,and for large projects that occur the City of Baytown reserves the right to
go out for bids. Contract shall he awarded for$100.000.
COOPERATIVE PURCHASING: As permitted under the Texas Local Government
Code, Chapter 791025, other government entities may wish to also participate under the
same terms and conditions contained in this contract (piggyback). Each entity wishing to
piggyback must have prior authorization from the City of Baytown and vendor. If such
participation is authorized. all purchase orders will be issued directly from and shipped
directly to the entity requiring supplies/services. The City of Baytown shall not be held
responsible for any orders placed, deliveries made or payment for supplies/services ordered
by these entities. Each entity reserves the right to determine their participation in this
contract.
REOUIREMENTS: Any variance in any item must be specified clearly under the
Exceptions to Bidder's Proposal by Bidder in order to have a valid bid. Any exceptions
taken may be just cause for disqualification.
All pricing shall be specified on the attached pricing sheets.
QUANTITIES: The City of Baytown reserves the right to increase or decrease quantities for
any item dependent on available funding during the entire term of this contract for the same
pricing as specified by Bidder on the attached pricine sheets. Proposed quantities are
estimates and may be subject to additions and/or deletions prior to award.
DESCRIPTION: Aggregate shall conform to state specifications and confirm to AS'1 �d
C-33, or latest revision thereof.
o ITEM #1 — Coarse A regate: Coarse aggregate shall be Limestone Rock
and/or Native Stone, well graded from fine to coarse within prescribed limits,
meeting the requirements of ASTN1 33. Coarse aggregate shall be 3/4" of less.
Unit price shall be per ton delivered.
g ITEM #2 — Coarse Aa rexate: Coarse aggregate shall be Limestone Rock
and!or Native Stone, well graded from fine to coarse within prescribed limits,
meeting the requirements of ASTM 33. Coarse aggregate shall be 1 1/2" of less.
Unit price shall be per ton delivered.
Agreement for the Purchase of Goods. Page I I
G ITEM #3 — Small Aggregate Pea Gravel: Smaller aggregate approximately
3/8"(pea gravel). Unit price per ton delivered.
ITEM #4 — Fine Aeere¢ate Concrete Sand• Washed graded coarse concrete sand.
Fine aggregate shall consist of natural sand and shall be free of injurious amounts of
organic impurities.
Agreement for the Purchase of Goods Page 12