Ordinance No. 3,23210924 -5
ORDINANCE NO, 3232
AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR AND
CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST
TO A CONTRACT WITH BERNARD JOHNSON INCORPORATED WITH RE-
GARD TO PROVIDING RADIO CONSULTANT SERVICES AND PROVIDING
FOR THE EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
BAYTOWN:
Section l: That the City Council of the City of Bayoown
hereby approves the contract with Bernard Johnson Incorporated
for radio consultant services, and authorizes and directs the
Mayor and City Clerk of the City of Baytown to execute and at-
test to said contract. A copy of said contract is attached
hereto, marked Exhibit "A ", and made a part hereof for all
intents and purposes.
Section 2: This ordinance shall t9ke effect from and
after its passage.
INTRODUCED, READ, and PASSED by the affirmative vote of
the City Council of the City of Baytown this the 24th day of
1981.
dl&_ '
ALLEN CANNON , P4ayor Pro Tem
ATTEST:
-
EILEEN I'. HALL, ity Clerk
APPROVED:
RANDALL B. STRONG, City _ orney
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EXHIBIT "A"
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THE STATE OF TEXAS X
X AGREEMENT
COUNTY OF HARRIS X
This Agreement is made this the %s day of 1981,
between the City of Baytown, a municipal corporation, hereinafter called "City ",
and Bernard Johnson Incorporated hereinafter called "Contractor ".
W I T N E S S E T Ei
1. Services. The Contractor, as an independent contractor, agrees to
furnish Radio Consultant services until the completion of the project or until
this contract is otherwise terminated by one of the parties. Contractor will
make general determinations as to whether the project is proceeding in accor-
dance with the contract. Contractor will keep the City informed of such
progress, and will use his best efforts to protect the City from defects and
deficiencies in the work.
2. Independent Contractor. The Contract shall act as an independent
contractor in the performance of services herein described. Nothing herein
contained at any time or in any manner shall be construed to effect an agreement
of partnership or joint venture or render any party hereto the employer of any
other party and /or its employees, agents or representatives.
3. Coordination with Owner. The Contractor shall hold periodic confer-
ences with the City of Baytown, or its representatives, to the end that the Proj-
ect, as Perfected, shall have full benefit of the City of Baytown's experience
and knowledge of existing needs and facilities, and be consistent with the current
policies and construction standards. To implement this coordination, the City
of Baytown shall make available to the Contractor, for use in planning the Proj-
ect, all existing plans, statistics, computations and other data in its
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possession relative to existing facilities and to the Project.
4. Liaisons Between the City of Baytown and Contractor. The City of
Baytown designates R.H. "Bo" Turner and Contractor designates David McConnell
who shall have the duty of acting as the points of contact to effect the ex-
peditious execution of the work called for by Project description hereunder. R.H.
"Be" Turner shall be empowered to request modifications or alterations of the ser-
vices performed by issuing additional Project description orders, and shall also be
the person to whom any communications relating to this agreement or any Project
description order or the performance thereunder may be directed.
5. Termination. Either party to this Agreement may terminate the Agree-
ment by giving to the other thirty (30) days' notice in writing. Upon delivery
of such notice by the City of Baytown to the Contractor, and upon expiration
of the thirty (30) day period, the Contractor shall discontinue all services in
connection with the performance of this Agreement and shall proceed to cancel
promptly all existing orders and contracts insofar as such orders or contracts.
are chargeable to this Agreement. As soon as practicable after receipt of notice
of termination, the Contractor shall submit a statement, showing in detail the
services performed under this Agreement to the date of termination. The City of
Baytown shall then pay the Contractor promptly that portion of the prescribed
charges which the services actually performed under this Agreement bear to the
total services called for under this Agreement, less such payments on account of
the charges as have been previously made.
6. Changes. The City of Baytown may, from time to time, require changes
in the scope of the services of the Contractor to be performed hereunder. Such
changes that are mutually agreed upon by and between the City of Baytown and the
Contractor and approved by City Council shall be incorporated into this contract.
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7. Audit and Records. The Contractor agrees to:
(a) Accept sole responsibility to pay for all services and
materials contracted for by the Contractor in the execution
of the Project task described above.
(b) Furnish any reports which may be required or reasonably
requested by the City of Baytown.
(c) Make available to State and /or Federal agencies the account-
ing records and books of the Contractor for examination and
audit as provided in the Charter of the City of Baytown.
8. Insurance and /or Indemnification. The Contractor shall secure and
maintain such insurance as will protect it from claims under the Workmen's
Compensation acts. The Contractor agrees to indemnify, and does hereby indemnify,
hold harmless and defend, the City of Baytown, its agents, servants and employees,
from and against any and all claims for damages or injuries to persons or property
of whatsoever kind arising, whether real or asserted, arising out of its negligent
acts, errors or omissions incident to this Project.
9. Arbitration. The parties agree that any dispute or claim concerning
this Agreement or the terms or conditions of employment, including whether such
dispute or claim is arbitrable, will be settled by arbitration. Any dispute or
claim arising hereunder will be submitted to arbitration upon request of either
party. The parties may agree on one arbitrator, otherwise, three arbitrators
are required. One arbitrator will be selected in writing by each party, the
third will be chosen by the first two. If the party demanding arbitration fails
to name an arbitrator within ten (18) days of demand, his right to arbitration
will lapse and the claim or dispute will be deemed final. Should two selected
arbitrators fail to choose a third, he will be chosen by a District Judge serving
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the county where the Project is to be performed. The arbitrators may make a
written request for any information concerning the dispute or claim. If either
party refuses or neglects to supply information within ten (10) days of such
request, the arbitrators may proceed with ex parte arbitration. The decision
of the arbitrators, including determination of amount of any damages suffered,
shall be exclusive, final, and binding on both parties, their heirs, executors,
a6m ;. istra -or s, and 7sS1C7ns _ F' ach part- -v shall bear his own e— nenses
in the arbitration for arbitrators fees and attorneys fees for his :witnesses
and other expenses of presenting his case. other arbitration costs, including
administrative fees, and fees for records or transcripts, shall be borne equally
by the parties.
10. Contract Terms to be Exclusive. This written Agreement contains the
sole and entire agreement between the parties and shall supersede any and all
other agreements between the parties. The parties acknowledge and agree that
neither of them has made any representation with respect to the subject matter of
this Agreement or any representations inducing the execution and delivery hereof
except such representations as are specifically set forth herein and each of
the parties hereto acknowledges that he or it has relied on his or its own judg-
ment in entering into the same. The parties hereto further acknowledge that
any statements or representations that may have heretofore been made by either
of them has relied thereon in connection with his or its dealings with the other.
11. Waiver or Modification Ineffective Unless in Writing. It is further
agreed that no waiver or modification of this Agreement or of any covenant,
condition, or limitation herein contained shall be valid unless in writing and
duly executed by the party to be charged therewith and that no evidence of any
waiver or modification shall be offered or received in evidence in any proceeding,
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arbitration, or litigation between the parties hereto arising out of or affect-
ing this Agreement, or the rights or obligations of any party hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid, and the
parties further agree that the provisions of this paragraph may not be waived
except as herein set forth.
12. Contract Governed by Law of State of Texas. The parties hereto
agree that it is their intention: and covenant that this Agreement and performance
hereunder and all suits and special proceedings hereunder be construed in accor-
dance with and under and pursuant to the laws of the State of Texas and that in
any action, special proceeding, or other proceeding that may be brought arising
out of, in connection with, or by reason of this Agreement, the laws of the State
of Texas shall be applicable and shall govern to the exclusion of the law of any
other forum, without regard to the jurisdiction in which any action or special
proceeding may be instituted.
13. officials Not to Benefit. No officer, member or employee of the
Contractor or Subcontractors and no member of the governing body, and no other
public officials of the governing body, of the City who exercises any functions
or responsibilities in the review or approval of the undertaking or carrying
out of this Project, shall participate in any decision relating to this Contract
which affects his or her personal interest or have any personal or pecuniary
interest, direct or indirect, in this Contract.
14. Copyrights and Rig'-its in Data. when activities involved in the
services provided for in this Contract produce original books, manuals, films,
computer programs (including executable computer programs and supporting data
in any form) or other copyrightable material, the Contractor may copyright such.
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15. Successors and Assignments. The City of Baytown and the Contractor
each binds himself and his successors, executors, administrators and assigns to
the other party of this Agreement and to the successors, executors, administrators
and assigns of such other party, in respect to all covenants of this Agreement,
except as above, neither the City of Baytown nor the Contractor shall assign,
sublet or transfer their interest in this Agreement without the written consent
of the other. Nothing herein shall be construed as creating any personal
liability on the part of any officer or agent of any public body which may be a
party hereto.
16. Project. The Project is the City of Baytown's program to improve
the radio communications of its Police, Public works and Fire Departments.
17. Scooe of Contractor's Services. The scope of the services to be per-
formed by the Contractor in connection with the Project is set forth in Exhibit
"A ", Scope of Services which is attached hereto and hereby made a part hereof by
reference.
18. Periods of Performance. The Contractor agrees to complete the per-
formance of the services described in attached Exhibit "A ", Scope of Services as
follows:
(a) Paragraph 2, Preliminary Phase Services: within a period
of 70 calendar days after receipt of City's authorization
of proceed with the performance of the Preliminary Phase
Services.
(b) Paragraph 3, Detailed Design Phase services: within a
period of 100 calendar days after City's authorization
to proceed with the performance of the Detailed Design
Phase Services, said 100 calendar day period includes
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a 30 calendar day period for the City to solicit and
receive bids for the implementation of the radio system
improvements recommended by the Contractor and approved
by the City.
(c) Paragraph 4, Implementation Phase Services: within the
number of calendar days as determined and agreed by the
City and the Contractor prior to the performance thereof
and based upon the period of performance in the City's
contract with the firm selected to implement the Project.'
(d) The above stated performance periods are dependent upon
timely responses from the City in matters requiring such
responses as the work progresses.
19. Contractor's Price. For and in consideration of the services to be
performed by the Contractor under the provisions of this Agreement, the City shall
pay the Contractor the Firm Fixed Price of Thirty Eight Thousand Six Hundred
Ninety Three and no /100 Dollars ($38,693.00).
20. Payments to the Contractor. The City shall pay the Contractor periodic
installments on account of the Firm Fixed Price set forth in 19 above and aggre-
gating thereto to wit:
(a) $11,081.00 upon delivery of the Final Documentation
mentioned in attached Exhibit "A ", paragraph 2, e.
(b) $16,000.00 upon delivery of the detailed system speci-
fications and bidding documents mentioned in attached
Exhibit "A ", paragraph 3, b.
(c) $2,084.00 upon delivery of the Final Documentation
mentioned in attached Exhibit "A ", paragraph 3, c.
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(d) Installments on account of the $9,528.00 Implementation
Phase fee as determined by the City and the Contractor
prior to Contractor's performance of the Implementation
Phase Services.
(e) The fees above described for the Preliminary, Design and
Implementation Phases shall provide compensation to the
Contractor fcr all performed by him sander this
Agreement, or under his direction, except the services
set forth below. These excluded services and the compen-
sation to be paid by City to Contractor for their perfor-
mance, if requested, are as set forth below:
(1) Extra travel required of Contractor
and authorized by the City to points
other than Contractor's office and
Project location.
(2) Assistance to City as expert witness
in any litigation with third parties,
arising from the Project.
(3) Expenses incurred in making
necessary land surveys, establish-
ing boundaries and monuments.
Cost of travel and living
expenses plus 10 percent
service charge.
$100 per diem for each day
on which Contractor's ser-
vices are required; plus
other services at salary cost
plus 120 percent; plus reim-
bursement for direct non -labor
expense and subcontract expense
at invoice cost plus 10 percent
service charge.
Salary cost plus 120 percent
and reimbursement for direct
non -labor expense at invoice
cost plus 10 percent service
charge.
Payment for any of the above listed services will be made after the per-
formance thereof, on monthly statements submitted by the Contractor and approval
by the City.
The City and the Contractor hereby mutually agree to the full performance
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of the terms, covenants and conditions set forth above.
IN WITNESS WHEREOF, the City and the Contractor have signed this instru-
ment in duplicate originals and have entered this Agreement on the day, month
and year first set forth above.
ATTEST:
CITY OF BAYTOWN
(City)
i
Eileen P. Ka 1, City Clerk ett O. Hutto, Mayor
A" I'ES'r:
Secretary
BERNARD JOHNSON INCORPORATED
I (Contractor)
By �'--
Edward J. Jvis, Senior Vice President
EXHIBIT "A"
SCOPE OF SERVICES
1. GENERAL
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a. This Exhibit "A" is part of an Agreement for radio consultant
services by and between the City of Baytown (City) and Bernard
Johnson incorporated (Cone- 'actor) dated the day of
1981 and is intended to be attached thereto.
b. The services to be performed by the Engineer under the provisions
of the above said Agreement are described below.
2. PRELIMINARY PHASE SERVICES
a. The Contractor shall inspect the existing radio facilities of the
Police, Public Works and Fire Departments to determine the avail-
ability of space for the installation of equipment and antennas
and to identify existing resources that may be reused.
b. The Contractor shall interview persons who will operate and maintain
the systems to determine operating and maintenance requirements
and shall review the City's plans for future growth and identify
future requirements for use in the development of a conceptual radio
system design.
C. The Contractor shall evaluate the results of the review, inspections,
and interviews called for in 2, a and ID, and shall develop a recom-
mended system configuration and shall select the types of equipment
proposed for use in the Project.
d. The Contractor shall prepare a conceptual system design based upon
the results of 2, a, b, and c, prepare a preliminary estimate of the
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cost of implementing the Project and a Schedule proposed to
accomplish the implementation.
e. The Contractor shall present to the City 5 copies of a Pre-
liminary Engineering Report documenting the conceptual system
design, cost estimate and schedule. Delivery of said report
shall constitute the Final Documentation and completion of the
Preliminary Phase Services.
3. DESIGN PHASE SERVICES
a. Upon receipt of City's approval of the Preliminary Engineering
Report the Contractor shall prepare detailed system specifica-
tions based upon the conceptual system design as approved by
the City and shall incorporate these specifications into a set
of bidding documents suitable for use by the City in the solici-
tation of competitive bids for the implementation of the
specified system.
b. The Contractor shall deliver to the City 10 copies of the de-
tailed system specifications and bidding documents. The
Contractor shall assist the City as technical advisor in the
solicitation of competitive bids, with a bidder's conference
and shall evaluate the bids received for the installation of
the system.
C. The Contractor shall deliver to the City written recommendations
for appropriate response by City to the bids received. The
written recommendations shall constitute the Final Documentation
and completion of the Design Phase Services.
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4. IMPLEMENTATION PHASE SERVICES
a. The Contractor shall act as technical advisor and assist the
City in the preparation of the contract for the implementation
of the recommended systems. Technical advice and support shall
be provided to the City in pre - construction conferences with
the system installer to establish the lines of communication
and protocol for day -to -clay administration of the contracts.
b. The Contractor shall assist the City with the administration of
the contract between the City and the installer of the recom-
mended systems in their day -to -day transactions.
C. The Contractor shall inspect the installation work in progress and
the materials, equipment wiring and cable used in the installation
for compliance with the contract specifications. Periodic reports
of the progress of the installation work and the state of compli-
ance with the specifications shall be prepared and presented to
the City.
d. The installer's invoices for periodic payment shall be checked
against the materials and equipment delivered and the work in-
stalled in place as of the date of the invoice. Written recom-
mendations concerning the City's appropriate response to each
periodic invoice shall be prepared and forwarded to the City.
C. The Contractor shall observe the installer's user personnel
training sessions, evaluate them for adequacy and compliance with
the specified requirements and report the results to the City.
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The installer's final check -out and performance acceptance
testing shall be observed and final inspections of the completed
installations for compliance with the specified requirements shall
be conducted. A written final inspection report shall be pre-
pared and presented to the City. The delivery of the final
inspection report shall constitute the Contractor's completion of
the implementation Phase Services for the purpose of payment by
the City to the Contractor.
£. The Contractor shall provide technical advice and assistance to
the City in initiating and preparing a satisfactory contract for
the maintenance of the installed systems, if desired by the City.
g. The Contractor shall not be responsible for construction methods,
techniques, sequences or procedures, safety precautions and programs
in connection with activities of the Implementation Contractor. As
to the warranty or guaranty of, or patent indemnity on, items of
machinery, equipment or other products manufactured by others, or work
of construction contractors, subcontractors or manufacturers, the
Contractor's responsibility with respect thereto is limited to the
assignment by the Contractor to the City of the manufacturer's or
Implementation Contractor's warranty or guaranty and /or patent
indemnity, and the Contractor agrees to cooperate with the City in
the enforcement thereof.
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