Ordinance No. 9,229ORDINANCE NO. 9229
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING. THE CITY MANAGER TO EXECUTE A
DISASTER SERVICES CONTRACT WITH DRC, INC., FOR POST - DISASTER
RECOVERY SERVICES FOR THE PERIOD OF SEPTEMBER 13, 2001, TO
DECEMBER 31, 2002; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN
IN THE AMOUNT OF ONE HUNDRED AND NO /100 DOLLARS ($100.00);
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute a disaster services contract with DRC, Inc., for post- disaster recovery
services for the period of September 13, 2001, to December 31, 2002. A copy of said agreement is
attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to DRC, Inc.,
in the amount ONE HUNDRED AND N01100 DOLLARS ($100.00) in accordance with the contract.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less,
provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five
percent (25 %).
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 13t' day of September, 2001.
PETE C. ALFARO, Ma
4W. 7rE S IITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., dA Attorney
c:\klh277\Council\Ordinance\DRCOrdinance
® AGREEMENT FOR DISASTER RECOVERY SERVICES
THIS AGREEMENT made and entered into this day of , 2001, by and
between City of _Baytown (hereinafter referred to as "City") and DRC, Inc. hereinafter referred
to as "CONTRACTOR."
r�
WHEREAS, City is located in the State of Texas and, as such may experience massive
destruction wrought by the impact of a hurricane landfall, violent storms, spawning tornados as
well as other natural and/or manmade disasters ( "Events "); and
WHEREAS, it is foreseen that it may be necessary to provide for debris management and
disaster recovery technical assistance to appointed and elected officials of the City, resulting
from these Events; and
NOW, THEREFORE, CONTRACTOR, for and in consideration of the sum ONE HUNDRED
AND N01100 DOLLARS ($100.00), and for other good and valuable consideration
acknowledged by the parties, agrees to perform debris management and disaster recovery
technical assistance upon the City's request under the following terms and conditions:
SCOPE OF SERVICES ONE — DAMAGE SURVEY
Within 24 hours after notification of an emergency as declared by the Mayor, CONTRACTOR
shall prepare and provide to the City a damage survey report as well as detailed cost estimates
for debris management and technical recovery assistance.
SCOPE OF SERVICES TWO — DEBRIS MANAGEMENT
It is the intent of this Agreement for the CONTRACTOR to remove as quickly as possible all
hazards to life and property resulting from an Event relating to an emergency as declared by the
Mayor. Clean up, demolition and removal will be limited to (1) that which is determined to
eliminate immediate threats to life, public health, and safety; (2) that which has been determined
to eliminate immediate threats of significant damage to improved public or private property, and;
(3) that which is considered essential to ensure economic recovery of the affected community to
the benefit of the community -at- large. Specifically the Scope of Services will include the items
listed in Attachment 1 and priced in Attachment 2 of this Agreement under the corresponding
heading.
SCOPE OF SERVICES THREE — TECHNICAL DISASTER RECOVERY ASSISTANCE
It is the intent of this Agreement for the CONTRACTOR to provide disaster recovery technical
assistance to appointed and elected officials of the City. This service shall include Program
Management Assistance. Specifically the Scope of Services will include the items listed in
Attachment 1 and priced in Attachment 2 of this Agreement under the corresponding heading.
f 1lU
Page 1
® The CONTRACTOR shall provide the City with an annual eight (8) hour training course to City
staff on emergency preparedness and recovery as it relates to Technical Disaster Recovery
Assistance.
SERVICES AND FACILITIES
It is understood that, except as otherwise specifically stated in this Agreement and Attachments
to this Agreement, the CONTRACTOR shall provide and pay for all labor, tools, equipment,
transportation, supervision, and all other services and facilities of any nature whatsoever
necessary to execute, complete and deliver the services within the time specified in the Notice -
To- Proceed as agreed upon by both parties.
PERMITS AND LICENSES
Permits and licenses of a temporary nature necessary for the prosecution of the Services shall be
secured and paid for by the CONTRACTOR unless otherwise stated in this Agreement.
The CONTRACTOR shall not be held responsible to secure permits and/or licenses which the
requirements for same have or will be waived due to a declaration of an emergency or disaster.
SUPERVISION BY CONTRACTOR
The CONTRACTOR will supervise and direct all Services. The CONTRACTOR is solely
responsible for the means, methods, techniques, sequences, safety program and procedures. The
CONTRACTOR will employ and maintain on the work site a qualified supervisor(s) who shall
have full authority to act on behalf of the CONTRACTOR and all communications given to the
supervisor by the City's Authorized Representative shall be as binding as if given to the
CONTRACTOR.
The name(s) of the supervisor(s) will be supplied to the City for each issuance of a Notice to
Proceed through an attachment to this Agreement in the form of a Memorandum for the Record.
CHANGES IN SERVICES
The City may at any time, as the need arises, order changes within the scope of services without
invalidating this Agreement. All changes affecting the project's costs or modifications of the
terms or conditions of this Agreement shall be authorized by means of an official written
Contract Change Order that is mutually agreed upon and signed by the City and the
CONTRACTOR. All changes must be recorded on a written Contract Change Order before
CONTRACTOR'may proceed with the changes to the Services provided.
TERM OF AGREEMENT
The term of this Agreement shall commence on September 13, 2001, and end on December 31,
2002.
Page 2
® RENEWAL OF AGREEMENT
This Agreement may be renewable on an annual basis after a concurrence of both parties on any
negotiated changes to the terms and specifications contained in this Agreement.
TERMINATION
Either party upon 90 days' written notice to the other party may terminate this Agreement
without cause; provided that the CONTRACTOR may not terminate without cause if an
emergency has been declared by the Mayor at any time during the 90 -day notice period.
Additionally, should the CONTRACTOR breach any provision of this Agreement, the City may
terminate this Agreement for cause by giving written notice to the Contractor. Termination for
cause shall be effective immediately upon receipt of the termination notice by the
CONTRACTOR.
INSURANCE
Throughout the term of this Agreement, the CONTRACTOR at its own expense shall purchase,
maintain and keep in force and effect insurance against claims for injuries to or death of persons
or damages to property which may arise out of or result from the CONTRACTOR's operations
and/or performance of services under this Agreement, whether such operations and/or
performance be by the CONTRACTOR, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for
whose acts any of them may be liable.
The CONTRACTOR's insurance coverage shall be primary insurance with respect to the City,
its officers, agents and employees. Any insurance or self - insurance maintained by the City, its
officials, agents and employees shall be considered in excess of the CONTRACTOR's insurance
and shall not contribute to it. Further, the CONTRACTOR shall include all subcontractors as
additional insureds under its commercial general liability policies or shall furnish separate
certificates and endorsements for each subcontractor. All coverage for subcontractors shall be
subject to all of the requirements stated herein.
CONTRACTOR shall maintain at all times during this Agreement the following minimum
insurance limits:
1. Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
➢ Coverage for "Any Auto."
2. Worker's Compensation: Statutory Limits of the State of Texas
Employer's Liability: $500,000
➢ Waiver of Subrogation Required.
® 3. Commercial General Liability (CGL)
General Aggregate: $2,000,000
Page 3
® Owners & Contractors Protective Liability: $500,000
Products & Completed Operations Aggregate: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $1,000,000
Coverage shall be at least as broad as ISO CG 00 01 10 93
➢ No coverage shall be excluded from standard policy without notification of individual
exclusions being attached for review and acceptance.
v
4. Additional Liability Umbrella:, $5,000,000
Prior to any work being performed on the site and no later than 10 days after the effective date of
any term of this Agreement, CONTRACTOR shall provide City valid Certificates of Insurance
and endorsements acceptable to the City evidencing such coverage.
Such Certificates contain a provision which provide that coverage afforded under the policies
will not be canceled, suspended, voided, changed or reduced until at least thirty (30) days' prior
written notice has been given to the City via certified mail, return receipt requested. New
certificates of insurance are to be provided to the City at least fifteen (15) days prior to coverage
renewals. Receipt of Certificates or other documentation of insurance or policies or copies of
policies by the City or by any of its representatives, which indicate less coverage than is
required, does not constitute a waiver of CONTRACTOR's obligation to fulfill the insurance
requirements herein. The CONTRACTOR shall also file with the City valid Certificates of
Insurance covering all Subcontractors.
The following are general requirements applicable to all policies:
➢ AM Best Rating of A; VII or better.
➢ Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
➢ Liability policies will be on occurrence form.
➢ The City, its officials and employees ' are to be added as Additional Insured to liability
policies.
➢ Upon request of and without cost to City of Baytown, certified copies of all insurance
policies and/or certificates of insurance shall be furnished to City of Baytown's
representative.
BONDS
The CONTRACTOR will furnish, within 10 days of receipt of a Notice to Proceed, a
performance and payment bond for any and/or all Notices to Proceed. The face amount of such
bonds shall be 100% of the estimate of the work described in the notice to proceed, which
estimate shall be mutually agreed to by the CONTRACTOR and the City. The cost of said bond
premium will not be an additional cost to the City, but will be an expense borne solely by the
CONTRACTOR.
Page 4
LJ
WARRANTY OF TITLE AND WAIVEROF LIEN
The CONTRACTOR shall not at any time suffer or permit any lien, attachment, or any other
encumbrance under the laws of the State of Texas or otherwise by any person or persons
whomsoever to remain on file with the City against any money due or to become due for any
work done or materials furnished under this Agreement or by any reason or claim or demand
against CONTRACTOR. Such lien, attachment, or encumbrance, until it is removed, shall
preclude any and all claims or demands for any payment by virtue of this Agreement.
Nonetheless, CONTRACTOR expressly understands and agrees that it must continue to
diligently perform the services required to be performed even if payments are being withheld.
LIQUIDATED DAMAGES
The CONTRACTOR and the City understand and agree that the failure to complete each work
order within the time therein specified will cause damage to the City and further agree that such
damages cannot 'be accurately measured and that ascertainment of the same will be difficult.
Therefore, the parties agree that for each and every calendar day that the CONTRACTOR's
services for a particular work order extends beyond the time allotted and specified in the work
order, the CONTRACTOR shall pay as compensation for the same a minimum of $500.00.
Additionally, the City may make a claim under the CONTRACTOR's public liability, property
damage insurance policy in effect. However, the foregoing agreement as to liquidated damages
constitutes only an agreement by the City and the CONTRACTOR as to the minimum amount of
damages which the City will sustain in any event by reason of the CONTRACTOR's failure to
timely perform the required services. Should the City suffer damages over and above the
minimum amount specified, the City shall recover such additional amount. All remedies
enumerated herein shall be cumulative and the City shall not be required to elect any nor deemed
to have an election by proceeding to enforce any one remedy.
INDEMNITY
CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES, 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 ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON,
OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE CONTRACTOR'S SERVICES, THE CONDUCT
OR MANAGEMENT OF CONTRACTOR'S BUSINESS OR ACTIVITIES, OR
FROM ANY ACT OR OMISSION BY CONTRACTOR, ITS AGENTS,
SERVANTS, EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEES,
ON OR ABOUT CITY PROPERTY, WHERE SUCH INJURIES, DEATH OR
DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY,
ITS OFFICERS, AGENTS AND /OR EMPLOYEES AND ANY OTHER
Page 5
Ll
PERSON OR ENTITY OR BY THE JOINT OR SOLE NEGLIGENCE OF THE
CONTRACTOR, ITS OFFICERS, AGENTS AND EMPLOYEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
CONTRACTOR AND THE CITY, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS INDEMNITY BY CONTRACTOR TO
INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF
THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR
DAMAGE AND FROM THE CONSEQUENCES OF THE CONTRACTOR'S
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR
DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS,
DAMAGE, CAUSE OF ACTION, SUIT, AND LIABILITY WHERE THE
INJURY, DEATH, OR DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF THE CITY UNMIXED WITH THE FAULT OF ANY
OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY
OF THE ABOVE, CONTRACTOR FURTHER AGREES AND COVENANTS
TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE CITY.
The indemnity herein provided will survive the expiration or termination of this Agreement.
COMPLIANCE WITH APPLICABLE LAWS.
The CONTRACTOR agrees that in the performance of its undertakings and obligations under
this Agreement, the CONTRACTOR will strictly observe and abide by all rules, regulations and
laws of the United States of America, the State of Texas and the City of Baytown, as they now
exist or may hereinafter be enacted or amended.
TIME OF THE ESSENCE.
Both the CONTRACTOR and the City acknowledge that time is of the essence in this
Agreement.
INDEPENDENT CONTRACTOR
It is expressly agreed and understood by all parties hereto that the CONTRACTOR is an
independent contractor in relation to the City of Baytown. Nothing herein contained 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. All necessary
operating personnel shall be deemed employees of the CONTRACTOR.
Page 6
® SUBCONTRACTING
The CONTRACTOR shall be fully responsible to City for the acts and omissions for its
subcontractors and of persons directly or indirectly employed by them, as the CONTRACTOR is
for the acts and omissions of persons employed by it.
The CONTRACTOR shall cause appropriate provisions to be inserted in all subcontracts relative
to the services and give the CONTRACTOR the same powers regarding terminating any
subcontract that the City may exercise over the CONTRACTOR under any provisions of this
Agreement.
Nothing contained in this Agreement shall create any contractual relationship between any
subcontractor and the City. The CONTRACTOR shall supply the names and addresses of
subcontractors and materials suppliers when requested to do so by the City upon activation of
this Agreement and updated by the CONTRACTOR to the City on a biweekly basis during said
activation.
The CONTRACTOR shall not use a subcontractor or material supplier whom the City has an
objection to, and shall make all reasonable attempts to subcontract with local firms currently
doing business within the City.
OBLIGATIONS
The City shall furnish all information and documents necessary for the commencement of
services, to include valid written Notices to Proceed. The City shall also provide field inspeciors
of a sufficient quantity, as defined by City with input from the CONTRACTOR, to facilitate
qualitative and quantitative documentation of the services.
The City hereby designates the City Manager or his/her designee as its official representative
with full power to represent the City as the Primary Point of Contact in all dealings with
CONTRACTOR .in connection with this Agreement. The _City, upon issuance of a Notice to
Proceed, will provide CONTRACTOR with a list of Official Representatives as designated by
the City Manager.
NO THIRD PARTY BENEFICIARIES.
This Agreement shall not bestow any rights upon any third party, but rather, shall bind and
benefit the CONTRACTOR and the City only.
ASSIGNMENT
The CONTRACTOR may not sell or assign all or part interest in this Agreement 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.
Page 7
® NOTICE
Unless otherwise provided in this Agreement, any notice, communication, request, reply or
advice (herein severally and collectively for convenience, called "Notice ") herein provided or
permitted to be given, made or accepted by any party to the other must be in writing and may be
given or served by depositing the 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 .
in person or via facsimile the same to an officer of such party, or by prepaid telegram, when
appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner
hereinabove described 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.
Notice given in any other manner shall be effective only if and when received by the party to be
notified. However, in the event of service interruption or hazardous conditions, neither party
will delay remedial action pending the receipt of formal notice. For the purpose of notice, the
address of the parties shall, until changed as hereinafter provided, be as follows:
If to the City, to
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522 -0424
Fax: (281) 420 -6586
If to the CONTRACTOR, to
DRC, Inc.
Attn: President
740 Museum Drive
Mobile, Alabama 36608
Fax: (334) 343 -5554
NO WAIVER
The failure of any party hereto to insist, in any one or more instances, upon performance of any
of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or
relinquishment of the future performance of any such terms, covenants or conditions by any
other party hereto, but the obligation of such other party with respect to such future performance
shall continue in full force and effect.
SEVERABILITY
The provisions of this Agreement are severable, and if any provision or part of this Agreement or
its application thereto to any person or circumstance shall ever be held by any court of competent
Page 8
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and
the application of such provisions or. part of this Agreement to other persons or circumstances
shall not be affected thereby.
CONSTRUCTION OF AGREEMENT
The parties agree that this Agreement shall not be construed in favor of or against any party on
the basis that the party did or did not author this Agreement.
CAPTIONS
The captions appearing at the first of each numbered section in this Agreement are inserted and
included solely for convenience and shall never be considered or given any effect in construing
this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities
of the respective parties hereto or in ascertaining intent, if any question of intent should arise.
AUTHORITY
The officers executing this Agreement on behalf of the parties hereby represents that such
officers have full authority to execute this Agreement and to bind the party he /she represents.
ENTIRE AGREEMENT
This Agreement and Attachments referred to herein, contain the entire Agreement of the parties,
and there are no other binding promises or conditions in any other Agreement whether oral or
written.
INCORPORATED ATTACHMENTS
This Agreement includes the following attachments and such attachments are attached hereto and
made a part hereof for all intents and purposes:
Attachment "1 ":
Agreement for Disaster Recovery Services
— Attachment 1
Attachment "2 ":
Agreement for Disaster Recovery Services
— Attachment 2
Attachment "3 ":
Agreement for Disaster Recovery Services
— Attachment 3
Attachment "4 ":
Agreement for Disaster Recovery Services
— FEMA forms
MODIFICATION
Except as otherwise provided herein, this Agreement shall be subject to change or modification
only with the mutual written consent of the parties hereto.
JURISDICTION/VENUE
The laws of the State of Texas shall govern this Agreement. Venue of this Agreement shall be in
Harris County.
Page 9
09/11/2001 TUE 09:54 FAX 334 343 5554 DRC INC MOBILE AL 10002/003
Tuesday, September 11. 2001 9:04 AM Mark Stafford (504) 288 -9273 p -02
� 1
The parties acknowledge that they have read, understand and intend to be bound by the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies,
each of which shall be an original.
ON BEHALF OF:
City of Baytown
By:
MONTE MERCM City Manager
Date:
ATTEST:
GARY w SMITH, City Clerk
ON BEHALF OR
DRC, Inc-
By:
Title:
ATTEST:
h
Printed Name
Before me, 506ra, Irn er the undersigned notary public, on this day
personally appeared M �k --il-tx o r in his/her capacity as njo n "r _ of DRC,
INC.
is known to me
proved to uae on the oath of
0 Aaan 10
or
09/11/2001 TtTE 09:54 FAX 334 343 5554 DRC INC MOBILE AL LYJUUJiuuJ
Tuesday, September 11, 2001 9:04 AM Mark Stafford (504) 288 -9273 p,03
proved to me through his 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)
(O one)
to be the person whose name is subscribed to foregoing �strume t and r to me
that he executed that instrument for the purposes
Given under my hand and seal of office-this L►�day of 2001.
P-..ray saview
My commission expires: 03 ,� 4 145
Paves 11
I ctcm