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Ordinance No. 15,592 ORDINANCE NO. 15,592 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH CLARK CONDON ASSOCIATES, INC., FOR PRELIMINARY DESIGN DOCUMENT SERVICES FOR THE PROPOSED LAKEWOOD PARK PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED EIGHTY-NINE THOUSAND SEVEN HUNDRED THIRTEEN AND NO/100 DOLLARS ($89,713.00); 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 Clark Condon Associates, Inc., for preliminary design document services for the proposed Lakewood Park Project. A copy of said agreement is attached hereto as Exhibit"A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Clark Condon Associates, Inc., in an amount not to exceed EIGHTY-NINE THOUSAND SEVEN HUNDRED THIRTEEN AND N0/100 DOLLARS ($89,713.00) for professional services in accordance with the agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00)or less. Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote f the City Cou f the City of Baytown this the 26`'day of October,2023. pYT(1(i!v MIKE LESTER,Mayor Pro Tem A Z� ANGELA PACKSON,,City Clerk n n' AP P VED AS FO SC T ity Attorney RAKaren Anderson\ORD[NANCES\2023\2023.10.26\PSA-LakewoodParkProject.docx EXHIBIT "A" AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is entered into by and between Clark Condon Associates Inc. (hereinafter "Consultant") and the City of Baytown, a home-rule municipality located in Harris and Chambers Counties, Texas (the "City"). 1. Scope of Services/Consultant Fees This Agreement authorizes Consultant to perform Landscape Architectural services for the study and completion of Preliminary Design services for the design of a Park and axillary support facilities, on a property known as the Baytown West Little League, 105 Winkler and TR 37A in Baytown, Texas (the "Work") for and on behalf of the City. a. This Agreement shall commence on the date of execution by the City Manages-and shall terminate the earlier of: (a) completion of the Work in accordance with this Agreement, including Exhibits; (b)five months/one hundred fifty days (5 months) 150 days following execution by the City Manager; or (c) Termination of this Agreement under Paragraph 11. b. The scope of the Work is detailed in Exhibit "A." C. Compensation and professional fees are detailed in Exhibit"B." d. The time schedules for the Work are specified in Exhibit "C." e. Each of these Exhibits "A" through "C" is incorporated into this Agreement by reference for all purposes. 2. Compensation and Professional Fees a. The City shall pay Consultant in installments based upon monthly progress reports and detailed invoices submitted by the Consultant based upon the following: 1. Preliminary Design............................................................................$455890.00 2. Boundary Survey...............................................................................$14,399.00 3. Topographic Survey...........................................................................$11,924.00 4. Reimbursable Expenses.....................................................................$17,500.00 5. Total ..................................................................................................$89,713.00 b. For an agreed contract amount identified as "Lump Sum," "Not to Exceed" and "Reimbursable," Consultant shall not exceed the fixed contractual amount without written authorization in the form of a contract amendment. Agreement for Consulting Services,Page 1 Rev.06/01/2023 C. Reimbursable Expenses are itemized by work category. Reimbursable Expenses shall be invoiced AT COST, without subsequent markup by Consultant. All invoices containing a request for Reimbursable Expenses shall include copies of the original expense receipts itemized per allowable category. (1) Allowable Reimbursable Expenses include: (a) Hard copy reproductions, copies, and/or binding costs; (b) Postage; (c) Mileage, for travel from Consultant's local office (within a 25-mile radius) to meetings at the City or jobsite. Mileage shall be charged at the current IRS rates; (d) Travel Expenses, mileage from local office to state or federal regulatory agency office beyond 100 miles; and (e) Lodging expenses for destinations beyond 100 miles from Consultant's local office AND when business hours exceed eight hours within one business day OR when Consultant's services require more than one eight-hour day at the destination; provided such expenses have been approved in writing by the City. (2) Disallowed Expenses include travel expenses for professional expertise traveling into the Greater Houston Area from Consultant's office outside the Greater Houston Area. d. Consultant shall invoice based upon total services actually completed during the applicable month. Invoices and all required or requested backup information shall be tendered no more often than once a month. Consultant shall not invoice the City for services or expenses that were incurred more than sixty (60) days before the date of the invoice. Failure to timely invoice the City for services or expenses shall result in Consultant's invoice being denied. e. In the event of a disputed or contested invoice, the City may withhold from payment that portion so disputed or contested, and the undisputed portion will be paid. 3. Personnel of Consultant a. Consultant's Project Manager Consultant shall designate Brandon Whittaker to serve as Project Manager for the Work performed under this Agreement. Any change of Project Manager shall require thirty(30) days advance written approval from the City's Representative. b. Licensed and Registered Landscape Architects Consultant shall keep full-time registered landscape architects licensed in the State of Texas on staff and assigned to the Work for the duration of its performance of the Work. Agreement for Professional Services,Page 2 C. Data on Consultant's Employees Prior to commencement of the Work,Consultant shall forward to the City a detailed resume of the personnel that will be assigned to the Work. Such personnel shall include, but not be limited to, landscape architects as applicable. d. Rejection of Consultant's Employees The City reserves the right to approve or reject from the Work any employees of Consultant. 4. Designation and Duties of the City's Representative a. The City's Director of Parks and Recreaction or his/her designee shall act as the City's Representative. b. The City's Representative shall use his best efforts to provide nonconfidential City records for Consultant's usage on the Work and to provide access to City's property and easements. However, the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, 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 best judgment as an experienced and qualified professional. Each submittal of opinion of probable cost shall be commensurate with the project design. Consultant shall be responsible for the technical accuracy of its services and documents resulting therefrom, and the City shall not be responsible for discovering deficiencies therein. Consultant shall correct such deficiencies without additional compensation. b. Codes and Standards (i) All references to codes, standards, environmental regulations and/or material specifications shall be to the latest revision, including all effective supplements or addenda thereto, as of the date that the order for any necessary equipment is made by the City or that the construction specified is bid by the City. Agreement for Professional Services,Page 3 (ii) If any such equipment is specially manufactured, it shall be identified to the City, and the Contractor and the Seller and/or Manufacturer shall present sufficient data to the City to support the design and the suitability of the equipment. (iii) All materials specified on any City project shall be in accordance with City, ASTM, ACI, and AASHT4 specifications, and with other recognized standards. Proprietary material or other materials for which no generally recognized standards exist may be used provided there has been at least five (5) years of proven experience in the field, and such satisfactory documentation has been approved by the City's Representative. (iv) The Work shall be designed and furnished in accordance with the most current codes and/or standards adopted by city, state, or federal government or in general custom and usage by the profession and shall comply with Texas Department of Licensing and Regulation's rules and regulations, including the Texas Accessibility Standards. (v) The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Contractor or Consultant if superior methods are available for successful operation of equipment and/or for the construction project on which the Work is performed. Any alternative codes or regulations used shall have requirements that are equivalent or better than those in the above-listed codes and regulations. Consultant shall state the alternative codes and regulations used. (vi) Consultant agrees the services it provides as an experienced and qualified landscape architect 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 Agreement will be pursuant to the standard of performance common in the profession. (vii) Consultant shall promptly correct any defective analysis caused by Consultant at no cost to City. The City's approval, acceptance, use of or payment for all or any part of Consultant's services hereunder or of the Work itself shall in no way alter Consultant's obligations or the City's rights under this Agreement. As applicable,Consultant shall provide the City with record "as-built" drawings relating to the Work in an electronic format that is acceptable to the City. City shall be in receipt of record drawings, if applicable,prior to final payment. (viii) Consultant has no control over the cost of labor, materials, equipment or services furnished by others, other than its subconsultants. Data projections and estimates are based upon Consultant's opinion based on experience and judgment. Consultant cannot and does not guarantee that actual costs and/or Agreement for Professional Services,Page 4 quantities realized will vary from the data projections and estimates prepared by Consultant. (ix) Consultant shall submit all preliminary construction design documents in both hard copy and electronic format. Plans shall be AutoCAD compatible and all other documents shall be Microsoft Office compatible. The software versions used shall be compatible to current City standards. Other support documents, for example, structural calculations, drainage reports and geotechnical reports, shall be submitted in hard copy only. All Record Drawings electronic files shall be submitted to the City in PDF/TIF format. 6. Schedule Consultant shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. Consultant's obligation to render services specified in Exhibit "B" will be for the entire period necessary for the final completion of the construction of the Work. If the Consultant contributes to any delay in the schedule,Consultant will have no right to seek and shall not be entitled to any additional compensation. 7. Instruments of Service Upon execution of this Agreement, Consultant grants to the City an ownership interest in the Instruments of Service. Consultant shall obtain similar interests from the City and Consultant's consultants consistent with this Agreement. As noted in Articles 5 and 11, Consultant shall be required to tender to City all Instruments of Service. With such ownership interest, it is expressly understood by the parties hereto that the City may use the Instruments of Service for any purposes which the City sees fit, including, but not limited to, subsequent construction, reconstruction, alteration,and/or repairs of the Project. As a condition to the City's use of the Instruments of Service, the City hereby expressly agrees to remove Consultant's name and all references to Consultant and its consultants from the Documents. Provided that this Agreement is not terminated for cause by the City, the City shall release any and all claims which the City could make arising out of or in connection with any reuse of the documents by the City. 8. Insurance Consultant shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Consultant, its agents, representatives, volunteers, employees or subconsultants. a. Consultant's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of Consultant's insurance and shall not contribute to it. Further, Consultant shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. Agreement for Professional Services,Page 5 The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: 1. Commercial General Liability ■ General Aggregate: $2,000,000 ■ Products &Completed Operations Aggregate: $2,000,000 ■ Personal &Advertising Injury: $1,000,000 ■ Per Occurrence: $1,000,000 ■ Fire Damage $500,000 ■ Waiver of Subrogation required ■ Coverage shall be broad form ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $1,000,000 ■ Coverage for "Any Auto" ■ Waiver of Subrogation required 3. Errors and Omissions ■ Limit: $1,000,000 for this project ■ For all architects, engineers, and/or design companies ■ Claims-made form is acceptable ■ Coverage will be in force for one (1) year after completion of the Proj ect ■ Waiver of Subrogation required 4. Workers' Compensation ■ Statutory Limits ■ Employer's Liability$500,000 ■ Waiver of Subrogation required b. The following shall be applicable to all policies of insurance required herein: 1. Insurance carrier for all liability policies must have an A.M. Best Rating of A:VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended,voided,canceled or reduced in coverage or in limits except after thirty (30) days prior written notice by mail, return receipt requested, has been given to the City. Agreement for Professional Services,Page 6 5. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Workers' Compensation and Errors and Omissions Policies required herein. 6. Upon request and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. 7. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. 8. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Consultant. Consultant shall provide copies of insurance policies and endorsements required hereunder to the City on or before the effective date of this Agreement. 9. Indemnification and Release CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY HIND, 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 CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT,OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY, CONSULTANT'S PARTIES). IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS Ajreement for Professional Services,Page 7 AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT-, SUBJECT TO THE LIMITATIONS IN TEXAS LOCAL GOVERNMENT CODE SECTION 271.904 AND TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION 130.002. 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. Consultant assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character,including the cost of defense thereof,for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties)and any loss of or damage to property(whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Consultant's services to be performed hereunder. This release shall apply with respect to Consultant's services regardless of whether said claims,demands,and causes of action are covered in whole or in part by insurance. 10. Subcontractors and Subconsultants Consultant shall receive written approval of the City's Representative prior to the use of any subcontractors or subconsultants. A copy of all proposed contracts with subconsultants and/or subcontractors shall be given to the City before execution of such contracts. 11. Termination of Consultant The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon written notice from the City Manager to Consultant of the City's election to do so. Furthermore, the City may immediately and without notice terminate this Agreement if Consultant breaches this Agreement. A breach of this Agreement shall include, but not be limited to, the following: Ajzreement for Professional Services,Page 8 (a) failing to pay insurance premiums, liens, claims or other charges; (b) failing to pay any payments due the city, state, or federal government from Consultant or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against Consultant; (d) the dissolution of Consultant; (e) refusing or failing to prosecute the Work or any separable part with the diligence that will ensure its completion within the time specified in this Agreement; (f) failing to complete Work within the time period specified in this Agreement;and/or (g) the violation of any provision of this Agreement. Upon delivery of any notice of termination required herein, Consultant shall discontinue all services in connection with the performance of the Agreement. Within ten(10) days after-receipt of the notice of termination,Consultant shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. At the same time that the final statement is tendered to the City, Consultant shall also tender to the City's Representative all of Consultant's instruments of service, including all drawings, special provisions, field survey notes, reports, estimates, and any and all other documents or work product generated by Consultant under this Agreement, whether complete or not, in an acceptable form and format together with all unused materials supplied by the City. No final payment will be made until all such instruments of service and materials supplied are so tendered. If this Agreement is terminated for cause, Consultant shall be liable for any damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing Consultant's services. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. 12. Records Within ten (10) days of the City's request and at no cost to the City, the City will be entitled to review and receive a copy of all documents that indicate work on the Proj ect that is subject to this Agreement. 13. Supervision of Consultant Consultant is an independent contractor, and the City neither reserves nor possesses any right to control the details of the Work performed by Consultant under the terms of this Agreement. 14. Billing The City shall have thirty (30) days to pay Consultant's invoices from the date of receipt of such invoices and necessary backup information. All invoices must identify with specificity the work or services performed and the date(s) of such work or services. In the event of a disputed or contested invoice, the parties understand and agree that the City may withhold the portion so contested, but the undisputed portion will be paid. Consultant shall invoice the City for work performed no more than once a month and may not invoice the City for work not performed. Invoices shall be received by the City no later than sixty(60)calendar days from the date Consultant and/or its subconsultants perform the services or incur the expense. Failure by Consultant to comply Agreement for Professional Services,Page 9 with this requirement shall result in Consultant's invoice being denied and the City being relieved from any liability for payment of the late invoice. 15. Indebtedness If Consultant, at any time during the term of this Agreement, incurs a debt, as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that Consultant has incurred a debt, the City's Director of Finance shall immediately notify Consultant in writing. If Consultant does not pay the debt within thirty(30) days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to Consultant under this Agreement, and Consultant waives any recourse therefor. 16. Verifications 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. 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. 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. Consultant does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of the contract against a firearm entity or firearm trade association. 17. Reputation in the Community Consultant shall retain a high reputation in the community for providing professional landscape architectural services. Consultant shall forward a copy of any current petition or complaint in any court of law which (a) asserts a claim for $50,000 or more for errors or omissions in providing landscape architectural services and/or(b) seeks to deny Consultant the right to practice landscape architectural services or to perform any other services in the state of Texas. 18. Payroll and Basic Records a. Consultant shall maintain payrolls and basic payroll records during the course of the work performed under this Agreement and shall preserve them for a period of three(3)years from the completion of the work called for under this Agreement for all personnel working on such work. Such records shall contain the name and address of each such employee, social security number, correct classification, hourly rates of wages paid, daily and weekly number of hours worked, deductions made and actual wages paid. b. Consultant shall make the records required to be maintained under the preceding subsection(a) of this section available at no cost to the City for inspection, copying or transcription or its authorized representatives within fifteen (15) days of the City's request therefor. Should the City request copies of the records, Consultant may redact employee social security numbers and/or addresses. Consultant shall Agreement for Professional Services,Page 10 permit such representatives to interview Consultant's employees during working hours on the job. 19. Governing Law This Agreement has been made under and shall be governed by the laws of the State of Texas. The parties further agree that performance and all matters related thereto shall be in Harris County, Texas. 20. Notices Unless otherwise provided in this Agreement, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail,postpaid and registered or certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. For the purpose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: CITY OF BAYTOWN Attn: City Manager P. O. Box 424 Baytown, Texas 77522-0424 For Consultant: CLARK CONDON ASSOCIATES, INC. Attn: Brandon Whittaker Address: 10401 Stella Link Road Houston, TX 77025 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15) days written notice is given of such new address to the other party. 21. No Third-Party Beneficiary This Agreement shall not bestow any rights upon any third party,but rather, shall bind and benefit Consultant and the City only. No person or entity not a signatory to this Agreement shall be entitled to rely on Consultant's performance of its services hereunder, and no right to assert a claim against Consultant by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Consultant'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 Agreement for Professional Services,Page 11 in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, Consultant consents to be joined in the arbitration proceeding if Consultant's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 23. Waiver No waiver by either party to this Agreement of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 24. Complete Agreement This Agreement represents the entire and integrated Agreement between the City and Consultant in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, whether written or oral, on the subject matter hereof. This Agreement may only be amended by written instrument approved and executed by both of the parties. The City and Consultant accept and agree to these terms. 25. No Assignment Consultant may not sell or assign all or part interest in this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. 26. Headings The headings used in this Agreement are for general reference only and do not have special significance. 27. Severability All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 28. Ambiguities In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 29. Authority The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. Agreement for Professional Services,Page 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the day of , 20 , the date of execution by the City Manager of the City of Baytown. CITY OF BAYTOWN JASON E. REYNOLDS, City Manager ATTEST: ANGELA JACKSON, City Clerk APPROVED AS TO FORM: S COTT LEMOND, City Attorney CONSULTANT: i CONSULTANT'S AM s f o i (Signa z ) E k 6 (Printed Name) i I (Title) Agreement for Professional Services,Page 13 c i STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared G[; ZA.41072/ �f� �T in his/her capacity as of j1z-A 2. (D6oJ / Ss c)Cf4 r� i#%/c on behalf of pdknown 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 I_�n-' day of ��PIi'hr3c� 20,3. k ,YSEALAIN JEROME lary ID#126466199 No ry ublic in and for th State of Texas s March 31,2024 AF-reement for Professional Services,Page 14 CLARK CONDON May 26,2023 10401 STELLA LINK ROAD Revised June 8,2023 HOUSTON, TEXAS 77025 Revised June 29,2023 J,hone 713.871.1414 fczr 713.871.0888 CLARKCONDON.COM EXHIBIT"A" SCOPE OF WORK—The Scope of Work for this project will include the design of a community park to support the Lakewood Community.The project is located at Greenbriar Drive and Lakewood Pool in Baytown, Texas.The planned amenities include play equipment, benches and lighting,trails,a parking lot,fishing pier, kayak launch, and dog park. The work will be accomplished by working closely with the Client and the Design Team. The Design Team includes a civil engineer and an electrical engineer.For the purposes of this scope of work,the City of Baytown will be referred to as the Client and Clark Condon Associates, Inc.as the Landscape Architect. The Landscape Architect shall be responsible for providing landscape architectural design and documentation services for the project. This shall be accomplished by working closely with the Client and Design Team. Scope of work includes design and documentation for the following: 1. Small park site 2. Pedestrian hardscape circulation 3. Planting and irrigation 4. Tree protection and preservation 5. Coordinate with Design Team including civil engineer for grading and drainage The work will be performed as outlined below: PRELIMINARY DESIGN-The Landscape Architect and Design Team shall prepare Preliminary Design drawings for the project. Drawings shall indicate general concepts,showing spatial relationships,scale and form of the program elements,and how they respond to site conditions,the program,and budget. Services to be provided in this phase include: 1. Visit the site to become familiar with the existing features of the site and the surrounding area. 2. Collect any existing data from the Client including existing site surveys and base maps, deed, or lease agreements to determine possible restrictions, right-of-way and easement information, existing site environmental investigations and assessments, electronic drawings files, utility plans and maintenance records, site constraints, prior studies, etc. for project site. 3. Request information on dry utilities from private utility companies. Design services for dry utilities such as telecommunications is not included in the scope. 4. Review and coordinate wet utility capacities and availability. 5. Electrical design for site lighting. 6. Project management and coordination with Design Team to develop Preliminary Design concepts. 7. Organize and schedule meetings with Client to review design concepts(2 maximum). 8. Prepare Preliminary Concepts and options for the overall scope. 9. Present Preliminary Concepts to Client for review and discussion.Following this input,the concepts will be consolidated into one design. 10. Prepare a phasing plan. 11. Prepare a budgetary construction cost estimate based upon Preliminary Design and phasing. 12. Deliverables include rendered plans,elevations, perspectives, and cost estimate. 13. Signed and sealed drawings will not be issued with this phase. landscape architecture Page 1 of 5 CLARK CONDON 14. Identify trees for demolition and protection. DESIGN DEVELOPMENT(SUPPLEMENTAL SERVICES)—The Landscape Architect and Design Team shall begin Design Development after the Client's approval of Preliminary Design and written authorization (Notice to Proceed) indicating level of effort and describing scope included in this phase. During this phase,we shall refine the design and budgets for the project. Design Development drawings shall depict actual materials,sizes and locations of all project elements indicated in the Notice to Proceed for this phase. Services to be provided in this phase include: 1. Prepare Design Development plans for all Phase I areas approved during Preliminary Design. 2. Select materials for all site elements,i.e.,walkways, play equipment,site furnishings,fencing, lighting,parking plantings,etc. 3. Organize and schedule Client meetings(2 maximum). 4. Present Design Development plans and materials to the Client for review and discussion. 5. Prepare cost estimates based on Design Development Phase I drawings. 6. Layout irrigation concept and main line. 7. Prepare an outline specification. 8. Prepare preliminary layouts for utility,drainage, and grading design. 9. Prepare preliminary site lighting and power plans. 10. Provide preliminary tree protection and removal plan and details. 11. Deliverables include site plans at 1"=20' scale indicating all items approved in Design Development Phase I. CONSTRUCTION DOCUMENTS(SUPPLEMENTAL SERVICES)—The Landscape Architect and Design Team shall begin Construction Documents after the Client's approval of Design Development drawings and written authorization(Notice to Proceed) indicating level of effort and describing scope included in this phase.The Design Team shall prepare Construction Documents and technical specifications for bidding and installation of all site elements approved in Design Development. Services to be provided in this phase include: 1. Provide site plans at 1"=20'-0"scale indicating all items approved in Design Development Phase I. 2. Provide details for all improvements as required for proper construction,installation,or finishing of all site components. 3. Prepare layout plans dimensioning all proposed improvements including dimension control and paving layout. 4. Coordinate with Design Team. 5. Prepare planting plans including all tree,shrub,vine,and groundcover selections for all locations. 6. Prepare irrigation plans including specifications,identification, location and sizing of the irrigation system and its component parts. 7. Finalize utility and drainage plans. 8. Prepare stormwater pollution prevention plan. 9. Finalize site lighting, power documentation,and light fixture locations. 10. Provide tree protection and removal plans,details, and mitigation calculations. Comply with local tree ordinance and coordinate with forestry department for trees removed from the site as necessary. 11. Prepare final construction cost estimate to include unit costs at current construction dollars. 12. Organize and schedule Client meetings(2 maximum). 13. Prepare project manual including contract documents and technical specifications in MasterSpec format. 14. Conduct project QA/QC review with Design Team. 15. Issue signed and sealed permit set. 16. Submit plans to TDLR for review. 17. Prepare final Construction Documents in reproducible format and digital format,AutoCAD,for bid. BIDDING(SUPPLEMENTAL SERVICES)—After completion and approval of the Construction Documents,the Landscape Architect and Design Team shall assist the Client with putting the plans out for public bid.This phase will be initiated with written authorization (Notice to Proceed) indicating level of effort and describing scope included in this phase.This scope assumes we shall prepare one bid package. Page 2 of 5 CLARK CONDON 1. Advertise bid package. 2. Distribute bid documents. 3. Conduct a pre-bid conference. 4. Prepare addenda as necessary. 5. Evaluate bids and make recommendations for contracts. 6. Revise the Construction Documents in a closing addendum,which incorporate any revisions and cost saving items agreed to during the bidding phase. CONSTRUCTION PHASE SERVICES(SUPPLEMENTAL SERVICES)—The Landscape Architect and Design Team shall provide Construction Phase Services for the project.This phase shall be initiated with written authorization(Notice to Proceed) indicating level of effort and describing scope included in this phase.Services to be provided in this phase include: 1. Perform periodic site visits(approximately 6 visits by Landscape Architect).The Design Team shall visit the site at intervals appropriate to the stage of construction,or as otherwise agreed with the Client to become generally familiar with the progress of the portion of the Work completed, and to determine in general if the Work observed is being performed in a manner indicating the Work,when fully completed, shall be in accordance with the Contract Documents. However,the Design Team shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.The Design Team shall not have control over,charge of,or responsibility for,the construction means,methods,techniques,sequences or procedures,or for the safety precautions and programs in connection with the Work,since these are solely the Contractor's rights and responsibilities. 2. Prepare elementary and supplementary sketches required to resolve field conditions related to design. 3. Review and take appropriate action on submittals, RFIs,and shop drawings submitted by contractors for conformance with the design concept. 4. Inspect plant materials, pre-delivery and on site,to assure conformance with plans and specifications as necessary. 5. Coordinate and conduct a substantial completion walkthrough at the conclusion of the construction and provide a punch list to Contractor to complete the project. 6. Based on site visits,and the data comprising the pay application,the Landscape Architect shall review and certify to Client that to the best of the Landscape Architect's and Design Team's knowledge, information and belief the Work has progressed as indicated and the quality of the Work is in accordance with the Contract Documents,and the Contractor is entitled to payment of the amount certified. 7. Review change orders for approval by the Client. 8. Conduct a final completion walkthrough and issue letter to the Client and contractor of findings. SUPPLEMENTAL SERVICES—The Landscape Architect and Design Team can provide the following services upon request of the Client.The following services are supplemental to the basic services and will only proceed based on written authorization (Notice to Proceed) indicating items approved and level of effort describing scope and fee to be included in approved service request. 1. Boundary Survey—Texas Society of Professional Surveyors Category 1A, Condition 2 Survey 2. Topographic Survey—Texas Society of Professional Surveyors Category 6 Survey 3. Water Meter Easement Services 4. Geotechnical Report 5. Design Development(See scope listed above) 6. Construction Documents(See scope listed above) 7. Bidding(See scope listed above) 8. Construction Phase Services(See scope listed above) Page 3 of 5 CLARK CONDON FEE-The total fee for this project is a lump sum based upon the estimated time and scope for professional services as outlined below, plus reimbursable expenses. Refer to Exhibit B for more detailed level of effort. Basic Services Preliminary Design $45,890.00 Supplemental Services Boundary Survey $14,399.00 Topographic Survey $11,924.00 Design Development $64,395.00 Construction Documents $67,530.00 Bidding $16,205.00 Construction Phase Services $33,800.00 Water Meter Easement $1,650.00 Geotechnical Report $16,500.00 TOTAL SUPPLEMENTAL SERVICES $226,403.00 GRAND TOTAL $272,293.00 It is anticipated the work will be complete in 6 months. Refer to Exhibit C. REIMBURSABLE EXPENSES - The Client shall pay the Landscape Architect for the cost of out-of-town travel expenses, messengers,mileage,printing,services including permit and review fees of professional consultants which cannot be quantified at the time of contracting,and other directly related costs.All expenses will be billed at cost to a maximum of$17,500.00. ADDITIONAL SERVICES—We consider additional services to include changes made after a phase of work has been accepted and we have been authorized by the Client to proceed to the next phase or because of Client changes to previous Project budget parameters or Project requirements. An additional services lump sum proposal will be submitted to the Owner for approval prior to the start of any out-of-scope work. HOURLY RATES Partner $350.00/hour Principal $225.00/hour Senior Associate $175.00/hour Associate $125.00/hour Project Staff $100.00/hour Administrative $90.00/hour Hourly rates will be reviewed annually and may be increased in accordance with annual salary and cost-of-living reviews. EXCLUSIONS TO THE CONTRACT 1. Off-site utility and paving design 2. Right-of-way improvements, including but not limited to traffic signals and turn lanes. 3. Stormwater detention design 4. Stormwater quality management plan 5. Existing site engineering and utility base information 6. 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Dtd 33A 7r7 ,44 I533 o3row l-'ToL NJ WN 11i1 101 U3IMON31VOOK TOW 1313 -v33X0m3V0 A0133 SO 13A31,8 UMMY3 ttlasoo wwa GOOMMI 7111"oarm" HOOMOD xyro CLARK CONDON PROJECT NAMELAKEWOOD PARK C.M.cl With:CITY OF BAYTOWN 9115/2023 EXHIBIT C-SCHEDULE 2024 Task Jul Au ust Se ember October November December Janua Februa March April Ma June Jul 1 211 4 1 2 1 3 1 4 1 1 2 3 4 1 1 1 2 1 3 1 4 1 1 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 4 1 2 3 < 1 2 3 4 Project Kick-Off Boundary Survey Topographic Survey Geolechnical Repaid Preliminary Design 30%Submittal Design Develo ment 60%Submittal Construction Documents 90%Submittal) Permitting Bidding Contract Negotiation Construction Phase Services Note:Schedule is very aggressive to meet the October design deadline.Schedule may slide depending on selected phasing after Preliminary Design and final scope of project bid package.Client reviews and decisions need to be timely to stay on schedule.