BAWA Resolution No. 2024-25 RESOLUTION NO. 2024-25
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN AREA
WATER AUTHORITY AUTHORIZING A PROFESSIONAL SERVICES
AGREEMENT WITH BGE, INC. FOR OWNER ADVISOR PHASE 1 AND 2
SERVICES FOR THE BAYTOWN AREA WATER AUTHORITY EAST SURFACE
WATER PLANT EXPANSION; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN AN AMOUNT NOT TO EXCEED THREE MILLION FOUR
HUNDRED SEVENTY-THREE THOUSAND FIVE HUNDRED SEVENTY-EIGHT
AND NO/100 DOLLARS($3,473,578.00);MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER
AUTHORITY:
Section 1: That the Board of Directors of the Baytown Area Water Authority hereby authorizes
the General Manager to execute a Professional Services Agreement with BGE, Inc, for Owner Advisor
Phase I and 2 services for the Baytown Area Water Authority East Surface Water Plant Expansion Project.
A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and
purposes.
Section 2: That the Board of Directors of the Baytown Area Water Authority authorizes
payment to BGE, Inc., in an amount not to exceed THREE MILLION FOUR HUNDRED SEVENTY-
THREE THOUSAND FIVE HUNDRED SEVENTY-EIGHT AND NO 100 DOLLARS ($3,473,578.00)
for professional services in accordance with the agreement authorized in Section I hereinabove.
Section 3: This ordinance shall take effect immediately from and after its passage by the Board
of Directors of the Baytown Area Water Authority.
INTRODUCED, READ and PASSED by the affirmative vote of the Board of Directors of the
Baytown Area Water Authority this the 2 1"day of August, 2024.
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p,WATiFR F K MCK AY, Vice Presid
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ANGELA IWCKSOIT, s 'stand �red D <
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APPROVED AS TO FO
SCOTT LEM 14D, General Counsel
R:•Ordinances and Resolutionsl.Resolution Drafts`•BAWA%8.21.2024`•Kristin`•PSA.OwnerAdvisorSery ices.BGE.kh.docx
EXHIBIT "A"
AGREEMENT FOR CONSULTING SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement (this "Agreement") is entered into by and between BGE, 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 Engineering services for the Baytown Area
Water Authority (BAWA) East Surface Water Plant Phase 2 Expansion (the "Work") for and on
behalf of the City.
a. This Agreement shall commence on the date of execution by the City Manager and
shall terminate the earlier of. (a) completion of the Work in accordance with this
Agreement,including Exhibits;(b)Eight Hundred Eighty-one(881)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 as detailed in Exhibit"B."
b. For an agreed contract amount identified as "Lump Sum," "Not to Exceed" and
"Reimbursable," Consultant shall not exceed the fixed contractual amount without
written authorization in the form of a contract amendment.
C. Reimbursable Expenses 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;
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(b) Postage;
(c) Mileage, for travel from Consultant's local office to meetings at the
City or jobsite only if Consultant does not have a local office within
a fifty (50) mile radius of Baytown. 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.
C. 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 Lindsay Kovar, P.E. to serve as Project Manager for the
Work performed under this Agreement. Any change of Project Manager shall
require thirty(30) days advance written approval from the City's Representative.
b. Licensed and Registered Architects Engineers
Consultant shall keep full-time registered architects and.or engineers licensed in
the State of Texas on staff and assigned to the Work for the duration of its
performance of the Work.
C. Data on Consultant's Employees
Prior to commencement of the Work, Consultant shall forward to the City a detailed
resume of the personnel that will be assigned to the Work. Such personnel shall
include,but not be limited to, architects and/or engineers as applicable.
d. Rejection of Consultant's Employees
The City reserves the right to approve or reject from the Work any employees of
Consultant.
4. Designation and Duties of the City's Representative
a. The City's Director of Public Works and Engineering 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 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.
S. 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, locality, and under the same professional license,
where required(the"Standard of Performance"). 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.
(ii) If any such equipment is specially manufactured, it shall be identified to the
City, and the Contractor and the Seller shall present sufficient data to the
City to support the design and the suitability of the equipment.
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(iii) All materials specified on any City project shall be in accordance with City, ASTM, ACI,
and AASHTO specifications, and with other recognized standards. Proprietary material or
other materials for which no generally 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 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 reasonably prudent architect;engineer will
reflect the professional standards, procedures and performances common in the industry
for this project. Consultant further agrees that any analysis, reports, preparation of
drawings, the designation or selection of materials and equipment, the selection and
supervision of personnel and the performance of other services under this contract will be
pursuant to the standard of performance common in the profession.
(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 quantities realized will vary from the data projections
and estimates prepared by Consultant.
(ix) Consultant shall submit all final construction documents in both hard copy and electronic
format. Plans shall be AutoCAD compatible and all other documents shall be Microsoft
Office compatible. The software versions used shall be compatible to current City
standards. Other support documents, for example, structural calculations, drainage reports
and geotechnical reports, shall be submitted in hard copy only. All Record Drawings
electronic files shall be submitted to the City in PDF TIF format.
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6. Disclaimer of Contractor's Work
Consultant shall not at any time supervise, direct, control, or have authority over any contractor's
work, nor will Consultant have authority over or be responsible for the means, methods,
techniques, sequences, or procedures of construction selected or used by any contractor, or the
safety precautions and programs incident thereto, for security or safety at the Project site, nor for
any failure of a contractor to comply with any laws applicable to that contractor's furnishing and
performing of its work. Consultant shall not be responsible for the acts or omissions of any
contractor.
7. 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. Consultant will perform the Work with reasonable diligence and expediency consistent
with the Standard of Performance. 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.
8. 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. 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.
9. 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.
The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
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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
Project
■ Waiver of Subrogation required
4. Workers' Compensation
■ Statutory Limits
■ Employer's Liability $500,000
■ Waiver of Subrogation required
b. The following shall be applicable to all policies of insurance required herein.
1. Insurance carrier for all liability policies must have an A.M. Best Rating of
A:V11I 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.
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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.
10. Indemnification and Release
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS 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, BUT ONLY TO THE
EXTENT CAUSED BY 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 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. CONSULTANT AGREES TO
REIMBURSE THE CITY FOR THE COSTS OF ATTORNEYS'
FEES INCURRED IN THE DEFENSE OF AN ACTION FOR
WHICH CONSULTANT IS OBLIGATED TO INDEMNIFY THE
CITY BUT ONLY TO THE SAME PROPORTIONATE EXTENT
AS THE LIABILITY ALLOCATED TO CONSULTANT UPON A
FINAL ADJUDICATION OF LIABILITY. 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) to the proportionate extent caused by the negligent performance of
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
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
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City's election to do so. Furthermore, Each party may immediately and without notice
terminate this Agreement if the other party breaches this Agreement. A breach of this
Agreement shall include, but not be limited to, the following:
(a) failing to pay insurance premiums, liens, claims or other charges;
(b) failing to pay any payments due the city, state, or federal government from
Consultant or its principals, including, but not limited to, any taxes, fees,
assessments, liens, or any payments identified in this Agreement;
(c) the institution of voluntary or involuntary bankruptcy proceeding against
Consultant;
(d) the dissolution of Consultant;
(e) refusing or failing to prosecute the Work or any separable part with the diligence
that will ensure its completion within the time specified in this Agreement;
(f) failing to complete Work within the time period specified in this Agreement;
and/or
(g) the violation of any provision of this Agreement.
Upon delivery of any notice of termination required herein, Consultant shall discontinue all
services in connection with the performance of the Agreement. Within ten (10) days after
►•eceipt 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 and subject to the payment obligations set forth herein, Consultant shall also tender to
the City's Representative the limited right to the use of 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, at City's sole risk, subject to the other terms of this Agreement. 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 each party in this section are in
addition to any other rights and remedies provided by law or under this Agreement.
12. Records
Within ten (10) days of the City's request and at no cost to the City, the City will be entitled to
review and receive a copy of all documents that indicate work on the Project that is subject to
this Agreement.
13. Supervision of Consultant
Consultant is an independent contractor, and the City neither reserves nor possesses any right
to control the details of the Work performed by Consultant under the terms of this Agreement.
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14. Billing
The City shall have thirty(30)days to pay Consultant's invoices from the date of receipt of such
invoices and necessary backup information.All invoices must identify with specificity the work
or services performed and the date(s) of such work or services. In the event of a disputed or
contested invoice, the parties understand and agree that the City may withhold the portion so
contested, but the undisputed portion will be paid. Consultant shall invoice the City for work
performed no more than once a month and may not invoice the City for work not performed.
Invoices shall be received by the City no later than sixty (60) calendar days from the date
Consultant and/or its subconsultants perform the services or incur the expense. Failure by
Consultant to comply with this requirement shall result in Consultant's invoice being denied and
the City being relieved from any liability for payment of the late invoice.
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 thirty (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.
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 reputation in the community for providing professional
architectural engineering services commensurate with the Standard of Performance. Consultant
shall forward a copy of any current petition or complaint in any court of law which (a) asserts
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a claim for $50,000 or more for errors or omissions in providing architectural engineering
services and or(b) seeks to deny Consultant the right to practice architecture engineering or to
perform any other services in the state of Texas.
18. Payroll and Basic Records
a. Consultant shall maintain payrolls and basic payroll records during the course
of the work performed under this Agreement and shall preserve them for a period
of three (3) years from the completion of the work called for under this
Agreement for all personnel working on such work. Such records shall contain
the name and address of each such employee, social security number, correct
classification, hourly rates of wages paid, daily and weekly number of hours
worked, deductions made and actual wages paid.
b. Consultant shall make the records required to be maintained under the preceding
subsection (a) of this section available at no cost to the City for inspection,
copying or transcription or its authorized representatives within fifteen(15)days
of the City's request therefor. Should the City request copies of the records,
Consultant may redact employee social security numbers and or addresses.
Consultant shall permit such representatives to interview Consultant's
employees during working hours on the job.
19. Governing Law
This Agreement has been made under and shall be governed by the laws of the State of Texas.
The parties further agree that perfonnance 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
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For Consultant:
BGE,Inc.
Attn: Lindsay Kovar,P.E.
10777 Westheimer Road,Suite 400
Houston, Texas 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 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 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. Any
inconsistency in any documents relating to the Work shall be resolved by giving precedence to
the terms and conditions of this Agreement (including any exhibits attached hereto). 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
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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.
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 E. REYNOLDS, City Manager
ATTEST:
ANGELA JACKSON, City Clerk
APPROVED AS TO FORM:
SCOTT LEMOND,City Attorney
CONSULTANT:
BGE, Inc.
(Signature)
(Printed Name) To bb CAC.V f
(Title) VIGC piteumor
14
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared ( � CRt LA
in his/her
capacity as V i Gl Pfe&Ac(1,1,...'t' of BGE, Inc.,on behalf of such
-,,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 Auc,, �— , 20OL-I
Notary Public in and for the State of Texas
►S; 4
r 4
P&" HEATHER GUILLORY
t
Notary Public,State of Texas
� .A Comm Expires 09-25-2027
�n�$�� Notary ID 134573594
15
Exhibit A
Baytown Area Water Authority East Water Plant Expansion
Owner Advisor Phase 1 and 2 Scope of Work
This Scope of Work(SOW)is for Phase i and Phase 2 of the BAWA East Water Plant Expansion Owner
Advisor's role.The intention of this scope of work is to provide tasks and services to take the project
to the end of project.The main categories of tasks are presented in detail below.QA/QC will be
performed throughout the project and on each deliverable.Concentric Construction Corporation, LLC
(CCC) is a subconsultant to BGE and their tasks are identified in the SOW.
Project Management
The project management tasks will be used to keep in constant and consistent communication with
the BAWA staff.
1. Project Coordination—Provide ongoing communications between BGE and BAWA.
2. Provide a monthly summary report to BAWA staff for the BAWA Board meeting.
3. Meet with BAWA staff monthly and attend BAWA board meeting to deliver report.
TWDB Support
1. Prepare the Texas Water Development Board (TWDB)and State Water Implementation Fund
for Texas(SWIFT)abridge application.
2. Prepare the TWDB and SWIFT Full Application.
3. Prepare the Environmental Review Documents for SWIFT.(See detailed scope below.)
4. Coordinate meetings and review with TWDB.
Environmental Services Scope
The project,as currently understood by BGE Environmental Services,requires environmental clearance
to receive State Water Implementation Funding.The project may qualify for a Categorical Exclusion/
Determination of No Effect(DNE);however,this determination can only be made by the TWDB. For
planning purposes,BGE has compiled this level of effort to prepare a request for DNE using the TWDB-
0803 form and,should TWDB determine the project does not qualify for a DNE,conduct a mid-level
environmental review,including preparation of a TWDB-0800 Environmental Data Form(EDF)and
supporting documentation.
BGE will need to conduct a site visit to document the existing conditions of the proposed expansion
areas,which will be conducted to accommodate the needs for both the DNE and the EDF.BGE will use
information obtained from desktop research and the site visit to compile the DNE Form TWDB-0803 and,
if needed,an EDF TWDB-0800 for submittal to the TWDB.Both forms will require basic project and
applicant information and an evaluation of potential project impacts on environmental resources,and
the EDF will require a summary of avoidance/minimization/mitigation measures,a summary of agency
coordination/consultation and environmental permitting,project maps and engineering drawings,and
relevant reports as attachments.As described in 31 TAC§363.14,BGE will consider a number of federal
and state regulations in preparing the EDF,including the Texas Antiquities Code,Endangered Species Act,
Texas Parks and Wildlife Code(Chapters 26,51,57,86),Clean Water Act,Migratory Bird Treaty Act,
National Flood Insurance Act,and Texas Natural Resources Code.To support development of the EDF
and comply with the above noted regulations,the efforts listed below will be required.
16
Exhibit A
Baytown Area Water Authority East Water Plant Expansion
Owner Advisor Phase 1 and 2 Scope of Work
• Aquatic resources evaluation and reporting to U.S.Army Corps of Engineers standards, if
determined necessary based on site visit.
• A cultural resources notification letter with background assessment to be submitted to the
Texas Historical Commission (THC).
• A Texas Antiquities Permit(TAP) application to conduct field investigations within non-
federal public land, a field investigation,a results report completed to THC and Council of
Texas Archeologists standards and TAP closeout services including document curation as a
state-approved facility, if determined to be required based on background assessment and
THC review.
• A protected species habitat evaluation for federally listed, proposed,and candidate species
that can be submitted to the U.S. Fish and Wildlife Services(USFWS).
• A Wildlife Habitat Assessment Program project review request package for submittal to
the TPWD.
• An environmental due diligence review using Environmental Risk Information Services'
database query.
Assumptions
• BAWA will provide BGE with the necessary project information to support completion of
the TWDB-0803 and TWDB-0800 forms(e.g., estimated project costs,funding sources,
points of contact, project schedule).
• A Phase I Environmental Site Assessment to ASTM standards will not be prepared under this
scope. If required,this can be prepared under a separate scope and fee.
• No environmental permitting(under the Clean Water Act or Texas Parks and Wildlife Code)
will be required.
• If a cultural resources investigation is required, no cultural material or features will be observed.
• No more than 15 acres will require cultural resources field investigation.
• No cultural resources deep prospection will be required by the THC or other review agencies.
• BGE has accounted for two 1-hour virtual meetings with TWDB personnel and two 1-
hour meetings with other agency personnel.
Phase 1
Once the contract is properly negotiated and the design-builder has been given the notice to
proceed, BGE will assist with Phase 1.
1. BGE will attend all progress meetings, design meetings and workshops.
2. BGE will participate in partnering session with BAWA and Design Builder to keep
open communication and further develop trust and relationships.
3. BGE will maintain a project risk register and quantify project risk throughout construction
with regular reviews.
4. BGE will log and track project communications between the Design-Builder and BAWA so that
responses to Design-Builder questions are provided in a timely manner.
5. BGE will perform periodic reviews of the cost model by talking with vendors and researching
construction cost databases.
17
Exhibit A
Baytown Area Water Authority East Water Plant Expansion
Owner Advisor Phase 1 and 2 Scope of Work
6. BGE will review all invoices which should include schedule updates, change order,
contingency usage,and clarification questions.
7. BGE will review all schedule logic and provide comments to Design-Builder. CCC will work
with BGE on this task.
8. BGE will review all design documents produced by the design-builder and help BAWA with
any technical concerns. It is assumed that there will be a design milestone at 30%and 60%.
9. BGE will review sequencing plans and help coordinate communication with Operations.
10. BGE will review subcontractor procurement details to determine if the subcontractor is
qualified and a fair price was given.
11. BGE will work with BAWA and Design Builder to scope and price early work packages
or Guaranteed Maximum Prices(GMP)
12. BGE will inspect materials and equipment that is procured early to ensure it is delivered in
good condition and stored correctly.Construction inspection services will be provided for any
early work packages that involve construction activities.
13. BGE will bring BAWA any concerns with the design-build team performance immediately
and work with BAWA to come up with a plan to address the concern. In addition, BGE will
address any concerns that BAWA may have with the design-build team performance and
work with BAWA to come up with a plan to address the concern.
If BAWA is satisfied with the design-build team performance in Phase 1,negotiations will start for the
design-builder's Phase II contract and GMP.BGE will work with the BAWA on the contract negotiations
for Phase II by reviewing the submitted GMP details,the scope of work and the schedule for the work.
BGE will attend meetings with the BAWA and the design-build team to work with questions and
concerns on the submitted package.BGE's Level of Effort(LOE)assumes negotiations for Phase 1.
If BAWA is not satisfied with the design-build team at the completion of Phase 1,BGE will work with
BAWA on an off-ramp route and a plan to select another contractor to construct the project.
Phase 2
In general, and except as may be modified in writing or directed by BAWA,the services to be
provided by BGE under Phase 2 is both Owner's Advisor and the Construction Management and
Observation/Inspection Services(CM&I). It is anticipated that the Owner's Advisor and CM&I roles
will have overlap. In general,the services below are outlined for each role.
Owner's Advisor
1. BGE will attend all progress meetings,design meetings and construction issue meetings,
and review summaries with recommendations to BAWA.
2. BGE will review all design documents produced by the design-builder and help BAWA with any
technical concerns.It is assumed that there will be a design milestone at 90%and 100%.
3. BGE will participate in partnering session with BAWA and Design Builder to keep
open communication and further develop trust and relationships.
4. BGE will maintain a project risk register and quantify project risk throughout construction
with regular reviews.
1s
Exhibit A
Baytown Area Water Authority East Water Plant Expansion
Owner Advisor Phase 1 and 2 Scope of Work
S. BGE will log and track project communications between the Design-Builder and BAWA so
that responses to Design-Builder questions are provided in a timely manner.
6. BGE will monitor the Design-Builder's use of Allowances and Contingencies so that costs
are allocated in the correct category of the Design-Build Contract.
7. BGE will review the Operations training and recommendations.
8. BGE will review the start-up/transition plan for transitioning the plant expansion from
the Design-Builder to BAWA.
9. BGE will Provide project completion/closeout support.
Construction Management and Observation/Inspection Services
BGE shall have no duty or obligation to supervise the contractor's work or his safety program.
1. All BGE personnel and subcontractors will follow an established safety plan.
2. BGE will coordinate and conduct a pre-construction meeting.
3. BGE will furnish a Resident Engineer and Inspection staff to assure that workmanship and
materials incorporated into the project meet the requirements of the plans and specifications.
4. The BGE Inspection staff will office out of an onsite field office provided by the Design-Builder
or BAWA.
S. BGE will provide a part time scheduler to review the Design-Builders baseline schedule and
monthly up-dates for accuracy,completeness,compliance with the specifications and
recommend acceptance or provide a detailed reason for rejection.CCC will work with BGE
on this task.
6. BGE will review contractor compliance with project requirements,including project supervision,
project scheduling,verification of insurance and bonds,and permitting compliance.
7. BGE will coordinate with various entities on the project(BAWA Personnel/Contractors'/Plant
Operators,'The Design-Builder,Utility companies,etc.).
8. BGE will oversee and coordinate the schedule of inspection staff to follow the Design-
Builders schedule.
9. BGE will review materials testing services invoices for accuracy(lab testing services for
construction materials and plant inspections are not included in the Scope of Services for
this agreement).
10. BGE will coordinate on RFI and shop drawing/submittal reviews and approvals utilizing
Procore Construction Software and Energov System.
11. BGE will review all change orders for validity and completeness, perform cost proposal
evaluations/recommendations and preparation and issuance of routine change orders.
Additionally, recommendations for time and costs associated with the change orders will be
forwarded to BAWA for approval prior to implementation. Preparation of plans and
specifications associated with the above change orders are not included in the Scope of
Services for this agreement.
12. BGE will ensure the daily construction activity reports are being completed in full and in a
timely manner by the inspectors as required by BAWA,giving all the necessary information
listed on the reports. BGE will complete any other additional reports as necessary to monitor
and document the construction progress in a format and with the documentation
requirements established by BAWA.
13. BGE will compile and recommend approval of the contractor's monthly pay estimates.BGE will
meet with contractor to review the estimate,prior to recommending approval to BAWA.BGE
19
Exhibit A
Baytown Area Water Authority East Water Plant Expansion
Owner Advisor Phase 1 and 2 Scope of Work
will prepare a monthly summary report of construction activities with outstanding issues
outlined for review(potentially holding payment for such issues)and assure complete
documentation is submitted by the contractor for materials-on-hand payments.
14. BGE will use the filing system in Procore Construction Software,or as required by BAWA.
15. BGE will review and maintain red-lined,as built drawings throughout the duration of
the contract prepared by Design-Builder.
16. BGE will review the plans and specifications in advance of the various work operations,looking
ahead to future operations to identify potential problems,conflicts,omissions,or plan errors.
17. BGE will monitor and track conflicts with utilities,permit compliance and unforeseen jobsite
conditions associated with the project that could affect the contractor's operations.BGE will
coordinate issues with BAWA personnel.
18. BGE will coordinate and monitor the performance of the Materials Testing Labs that is
contracted by BAWA,to help assure sampling,testing,and reporting are performed as required
and in a timely manner.BGE will perform random quality assurance review spot checks of the
Lab Technicians performance and immediately bring deficiencies to BAWA's attention.BGE will
review test reports for accuracy and maintain filing system for test reports and material
compliance as required. BGE will coordinate with BAWA on budget and ensure that tests are
ordered to comply with specifications and budget.
19. BGE will coordinate and conduct construction progress/partnering meetings,where the
status of contractor's critical path method(CPM)work schedule,outstanding issues,
submittals,shop drawings, RFls and change orders are discussed.
20. BGE will review any request for time extensions or additional compensation and submit
findings and recommendations to BAWA.
21. BGE will review the contractor's field documentation to verify compliance with the Texas
Pollutant Discharge Elimination System(TPDES)permit requirements and document the
findings.BGE will inspect the project on a regular basis and after each heavy rainfall to assure
that the Storm Water Pollution Prevention Plan(SWPPP)is being followed and timely
maintenance is occurring. BGE will document any discrepancies on a TPDES/SWPPP check list.
22. BGE will keep thorough records on contractor heavy equipment,documenting equipment
description w/make&model number,date arrived on project,owned, or rented,hours
used/standby, broke down,or date it left the project(photo of each piece of equipment
for equipment log).
23. BGE will follow BAWA's policy for visitors and addressing the media.
24. BGE will prepare a punch list of discrepancies for the various construction items and monitor
the completion and acceptance of the items as required by the specifications. BGE will review
project for final acceptance and coordinate final review with BAWA.
25. BGE will complete a project closeout check list,coordinating the final documentation
processing in accordance with BAWA standards, policies,procedures,and guidelines and
submit to BAWA staff upon completion of the project.
20
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