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Ordinance No. 15,918 ORDINANCE NO. 15,918 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE AGREEMENT FOR CONSULTING SERVICES WITH MASTERSON ADVISORS LLC AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ********************************************************************************** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS: Section 1: That the facts and matters set forth in the recitals of this Ordinance are hereby found to be true and correct and are herein adopted by the City Council of the City of Baytown,Texas. Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute the Agreement for Consulting Services as referenced above in an amount not to exceed ONE HUNDRED THOUSAND DOLLARS ($100,000.00). A copy of said agreement is attached hereto as Exhibit"A" and incorporated herein for all intents and purposes. Section 3: This Ordinance will take effect immediately from and after its passage by the City of Council of the City of Baytown,Texas. INTRODUCED,READ,AND PASSED by the affirmative vote of the City Council of the City of Baytown, Texas, this 26th day of September 2024. rtrt Tn , ON CAPETILLO, Mayor CP ® o� °o _ O O A tEL C , City�lerk VED S TO FORM• SCOTT LEM ND, City Attorney EXHIBIT "A" AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is entered into by and between Masterson Advisors LLC (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 a. This Agreement authorizes Consultant to perform Specify Type of Service to be Performed services for State the Purpose, Project, Location, etc. of the Work (the "Work") for and on behalf of the City as specified in the Scope of Work attached as Exhibit "A." b. This Agreement shall commence on the date of execution by the City Manager and (if not terminated in accordance with paragraph 10) shall terminate: ❑ upon completion of the Work in accordance with this Agreement, including Exhibits; ❑ number of months/days (spelled out) (number of months/days [numerical]) months/days following execution by the City Manager; ❑ the earlier of (a)completion of the Work in accordance with this Agreement, including Exhibits; (b) number of months/days (spelled out) (number of months/days [numerical]) months/days following execution by the City Manager. c. The scope of the Work is detailed in Exhibit "A." d. Compensation and professional fees are detailed in Exhibit"B." e. The time schedules for the Work are specified in Exhibit "C." f. 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: i. Design Phase Services (Lump Sum) $Dollar Amount.Cents ii. Bid Phase Services(Hourly Not to Exceed) $Dollar Amount.Cents iii. Construction Phase Services (Hourly Not to Exceed) $Dollar Amount.Cents Agreement for Professional Services,Page 1 Rev.04/19/2023 iv. Additional Services(Lump Sum) $Dollar Amount.Cents (These services require independent and specific advance,written authorization) v. Reimbursable Expenses(Not to Exceed) $Dollar Amount.Cents vi. Total $100,000.00 b. 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; (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. Agreement for Professional Services,Page 2 3. Personnel of Consultant a. Consultant's Project Manager Consultant shall designate Project Manager's Name, 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 Add type of Professional Consultant shall keep full-time registered Add type of Professional licensed in the State of Texas on staff and assigned to the Work for the duration of its performance of the Work. c. Data on Consultant's Employees Prior to commencement of the Work,Consultant shall forward to the City a detailed resume of the personnel that will be assigned to the Work. d. Rejection of Consultant's Employees The City reserves the right to approve or reject from the Work any employees of Consultant. 4. Designation and Duties of the City's Representative a. The Director of Department Name or his/her designee shall act as the City's Representative. b. The City's Representative shall use his or her best efforts to provide nonconfidential City records for Consultant's use. However, the City does not guarantee the accuracy or correctness of the documents so provided. Notwithstanding the foregoing, Consultant shall be entitled to use and rely upon information provided by the City in performing the services required under this Agreement only to the extent and level specified by the City in writing for each document provided. Nothing contained herein shall be construed to require the City to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the City. 5. Standards of Performance a. Consultant shall perform all services under this Agreement with the care and skill ordinarily used by members of Consultant's profession practicing under the same or similar circumstances,time and locality. Opinion of probable cost shall be based upon the Consultant's experience and represent its best judgment as an experienced and qualified professional. Each submittal of opinion of probable cost shall be commensurate with the project design. Agreement for Professional Services,Page 3 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 requestor for Work is made by the City. ii. 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. iii. The codes and standards used in the profession set forth minimum requirements.These may be exceeded by the 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. iv. Consultant agrees the services it provides as an experienced and qualified Add type of business 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. v. 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. 6. Schedule Consultant shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. Agreement for Professional Services,Page 4 7. Insurance Consultant shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Consultant, its agents, representatives,volunteers, employees or subconsultants. a. Consultant's insurance coverage shall be primary insurance with respect to the City, its officials, employees 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: i. 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. ii. Business Automobile Policy • Combined Single Limits: $1,000,000 ■ Coverage for"Any Auto" • Waiver of Subrogation required iii. Errors and Omissions • Limit: $1,000,000 for this project • Claims-made form is acceptable • Coverage will be in force for one (1) year after completion of the Project • Waiver of Subrogation required iv. Workers' Compensation ■ Statutory Limits ■ Employer's Liability$500,000 • Waiver of Subrogation required Agreement for Professional Services,Page 5 b. The following shall be applicable to all policies of insurance required herein: i. Insurance carrier for all liability policies must have an A.M. Best Rating of A:VIII or better. ii. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. iii. Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. iv. Each insurance policy shall be endorsed to state that coverage shall not be suspended,voided,canceled or reduced in coverage or in limits except after thirty (30) days prior written notice by mail, return receipt requested, has been given to the City. v. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Workers' Compensation and Errors and Omissions Policies required herein. vi. Upon request and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. vii. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. viii. 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. 8. 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 KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON,FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY Agreement for Professional Services,Page 6 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. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement,the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this 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 Agreement for Professional Services,Page 7 services regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 9. Subcontractors and Subconsultants Consultant shall receive written approval of the City's Representative prior to the use of any subcontractors or subconsultants. A copy of all proposed contracts with subconsultants and/or subcontractors shall be given to the City before execution of such contracts. 10. Termination of Consultant The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon written notice from the City Manager to Consultant of the City's election to do so. Furthermore, the City may immediately and without notice terminate this Agreement if Consultant breaches this Agreement. A breach of this Agreement shall include, but not be limited to, the following: (a) failing to pay insurance premiums, liens, claims or other charges; (b) failing to pay any payments due the city, state, or federal government from Consultant or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against Consultant; (d) the dissolution of Consultant; (e) refusing or failing to prosecute the Work or any separable part with the diligence that will ensure its completion within the time specified in this Agreement; (f) failing to complete Work within the time period specified in this Agreement;and/or (g) the violation of any provision of this Agreement. Upon delivery of any notice of termination required herein, Consultant shall discontinue all services in connection with the performance of the Agreement. Within ten(10)days after receipt of the notice of termination,Consultant shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required 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. Agreement for Professional Services,Page 8 11. Records Within ten (10) days of the City's request and at no cost to the City, the City will be entitled to review and receive a copy of all documents that indicate work on the Project that is subject to this Agreement. Except for proprietary data,which we are enjoined from sharing. 12. Supervision of Consultant Consultant is an independent contractor, and the City,neither reserves nor possesses any right to control the details of the Work performed by Consultant under the terms of this Agreement. 13. Billing The City shall have thirty (30) days to pay Consultant's invoices from the date of receipt of such invoices and necessary backup information. All invoices must identify with specificity the work or services performed and the date(s) of such work or services. In the event of a disputed or contested invoice, the parties understand and agree that the City may withhold the portion so contested, but the undisputed portion will be paid. Consultant shall invoice the City for work performed no more than once a month and may not invoice the City for work not performed. Invoices shall be received by the City no later than sixty(60)calendar days from the date Consultant and/or its subconsultants perform the services or incur the expense. Failure by Consultant to comply with this requirement shall result in Consultant's invoice being denied and the City being relieved from any liability for payment of the late invoice. 14. Indebtedness If Consultant, at any time during the term of this Agreement, incurs a debt, as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the City's Director of Finance in writing. If the City's Director of Finance becomes aware that Consultant has incurred a debt, the City's Director of Finance shall immediately notify Consultant in writing. If Consultant does not pay the debt within thirty(30) days of either such notification, the City's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to Consultant under this Agreement, and Consultant waives any recourse therefor. 15. Verifications If Consultant has ten (10) or more full-time employees and Consultant's total compensation under this Agreement has a value of One Hundred Thousand Dollars ($100,000.00)or more, Consultant makes the following verifications in accordance with Chapters 2271 and 2274 of the Texas Government Code: a. the Consultant does not boycott Israel and will not boycott Israel during the term of the contract to be entered into with the City of Baytown; b. the Consultant does not boycott energy companies and will not boycott energy companies during the term of the contract to be entered into with the City of Baytown; and c. the Consultant does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not discriminate during the term of the contract against a firearm entity or firearm trade association. Agreement for Professional Services,Page 9 16. Governing Law This Agreement has been made under and shall be governed by the laws of the State of Texas. The parties further agree that performance and all matters related thereto shall be in Harris County, Texas. 17. Notices Unless otherwise provided in this Agreement, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail,postpaid and registered or certified, and addressed to the party to be notified,with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three(3)days after it is so deposited. For the purpose of notice,the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: CITY OF BAYTOWN Attn: City Manager P. O. Box 424 Baytown, Texas 77522-0424 For Consultant: Masterson Advisors LLC Attn: Tina Arias Peterman 3 Greenway Plaza, Suite 1100 Houston, Texas 77046 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. 18. 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. 19. 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 Agreement for Professional Services,Page 10 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. 20. 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. 21. 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. 22. 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. 23. Headings The headings used in this Agreement are for general reference only and do not have special significance. 24. 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. 25. 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. 26. 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 I I 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: Masterson Advisors LLC (Signature) (Printed Name) (Title) Agreement for Professional Services,Page 12 STATE OF TEXAS § COUNTY OF HARRIS§ Before me on this day personally appeared ,in his/her capacity as , on behalf of such ® known to me; O proved to me on the oath of ; or O 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 , 20_ Notary Public in and for the State of Texas R:\Karen Anderson\CONTRACTS\TEMPLATES\Professional Services Template-Non-Grant(Fillable).docx Agreement for Professional Services,Page 13