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Ordinance No. 9,764 AGREEMENT FOR PROFESSIONAL SERVICES STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") entered into by and between de Oplossing, Inc. (hereinafter "the Professional") and the City of Baytown, a home-rule municipality located in Harris and Chambers Counties, Texas (the "City"). 1. Scope of Services/Professional Fees This Agreement authorizes Professional to perform construction management services for the construction of the Baytown Emergency Operations Center (the "Work") for and on behalf of the City. The compensation for Professional shall be on the basis described in Exhibit "A," with reimbursement of costs on the basis described in Exhibit "B." The time schedules for the Work are attached as Exhibit "C." The scope of the work and projection of costs of the construction project is as denoted in Exhibit "D." Each of these Exhibits "A" through "D" is incorporated into this Agreement by reference for all purposes. 2. Progress Reports Professional shall provide written progress reports to the City regarding the Work and oral reports as requested. At least one progress report shall be made at the time that approximately seventy percent (70%) of any phase as outlined in Exhibit "C" is completed. Such progress report shall identify the projected time and cost required by the Professional to complete the remaining phases of the Work required under this Agreement. 3. Personnel of the Professional a. Professional's Project Manager Professional shall designate Allen Shirley to serve as Project Manager for the Work performed under this Agreement. Any change of Project Manager shall require thirty days' advance written approval from the City's Representative. b. Licensed and Registered Engineers Professional shall keep a full-time registered engineer 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 Professional's Employees Prior to commencement of the Work, Professional 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, engineers. d. Rejection of Professional's Employees The City reserves the right to approve or reject from the Work any employees of the Professional. 4. Designation and Duties of the City's Representative a. The City's Director of Engineering or his designee shall act as the City's Representative. b. This City's Representative shall use his best efforts to provide nonconfidential City records for Professional'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. 5. Standards of Performance a. The Professional shall perform all services under this Agreement with the care and skill ordinarily used by members of Professional's profession practicing under the same or similar circumstances, time and locality. Professional 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. Professional shall correct such deficiencies without additional compensation. b. Codes and Standards (1) 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. (2) 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. (3) All materials furnished on any City project shall be in accordance with all recognized standards. Proprietary material or other materials for which no generally recognized standards exist may be used provided there has been at least five years of proven experience in the field, and such satisfactory documentation has been approved by the City's Representative. 2 (4) 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. (5) The codes and standards used in the profession set forth minimum requirements. These may be exceeded by the Contractor or the Professional 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. The Professional shall state the alternative codes and regulations used. (6) Professional agrees the services it provides as an experienced and qualified construction consultant will reflect the professional standards, procedures and performances common in the industry for this project. Professional 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. (7) Professional shall promptly correct any defective analysis caused by Professional at no cost to City. The City's approval, acceptance, use of or payment for all or any part of Professional's services hereunder or of the Work itself shall in no way alter Professional's obligations or the City's rights under this Agreement. Professional 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 Professional shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the City's Representative. 7. Instruments of Service Upon execution of this Agreement, Professional grants to the City an ownership interest in the Instruments of Service. Professional shall obtain similar interests from the City and Professional's consultants consistent with this Agreement. As noted in Articles 5 & 11, Professional 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 Professional's name and all references to Professional and its consultants from the Documents. Provided that this Agreement is not 3 terminated for cause by the City, the City shall release any and all claims which the City could make arising out of or in connection with any reuse of the documents by the City. 8. Insurance Professional shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by Professional, its agents, representatives, volunteers, employees or subconsultants. a. Professional'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 Professional's insurance and shall not contribute to it. Further, Professional 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: 1. Commercial General Liability • General Aggregate: $1,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal &Advertising Injury: $1,000,000 • Per Occurrence: $500,000 • Fire Damage: $50,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • 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: $500,000 • Coverage for"Any Auto" 3. Errors and Omissions • Limit: $500,000 for this project. • For all architects, engineers, and/or design companies • Claims-made form is acceptable 4. Workers' Compensation • Statutory Limits • Employer's Liability: $500,000 • Waiver of Subrogation required. 4 b. The following shall be applicable to all policies of insurance required herein. 1. Insurance carrier must have an A.M. Best Rating of A:VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after sixty (60) days' prior written notice by certified mail, return receipt requested, has been given to the City. 5. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. 6. Upon request and without cost to the City, certified copies of all insurance polices 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 Professional. Professional shall provide copies of insurance policies required hereunder to the City on or before the effective date of this Agreement. 9. Indemnification and Release PROFESSIONAL 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, ARISING OUT OF, OR IN 5 CONNECTION WITH THE WORK DONE BY PROFESSIONAL UNDER THIS CONTRACT CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF PROFESSIONAL AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH PROFESSIONAL AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY PROFESSIONAL TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF PROFESSIONAL'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. 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 THE CITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, PROFESSIONAL FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED FOR IN THIS ARTICLE IX SHALL SURVIVE THE TERMINATION 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 Contract 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. Professional assumes full responsibility for its work 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 Professional's work to be performed hereunder. This release shall apply with respect to Professional's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 6 10. Subcontractors and Subconsultants Professional shall receive written approval of the City's Representative prior to the use of any subcontractors or subconsultants. A copy of all proposed contracts with subconsultants and/or subcontractors shall be given to the City before execution of such contracts. 11. Termination of Professional The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon ten (10) days' written notice from the City Manager to Professional of the City's election to do so. Furthermore, the City may immediately and without notice terminate this Agreement if Professional 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 Professional 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 Professional; (d) the dissolution of Professional; (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 wthin 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, Professional shall discontinue all services in connection with the performance of the Agreement. Within ten (10) days after receipt of the notice of termination, Professional 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, Professional shall also tender all of Professional's work product, whether complete or not, in an acceptable form and format to the City's Representitive. No final payment will be made until all work product is so tendered. If this Agreement is terminated for cause, Professional shall be liable for any damage to the City resulting therefrom. This liability includes any increased costs incurred by the City in completing Professional's work. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. 12. Records Within ten 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 the subject of this Agreement. 7 13. Supervision of Professional Professional is an independent contractor and the City neither reserves nor possesses any right to control the details of the Work performed by Professional under the terms of this Agreement. 14. Billing The City shall have thirty (30) days to pay Professional's bills from the date of receipt of such bills. All bills 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. 15. Reputation in the Community Professional shall retain a high reputation in the community for providing professional construction consultant services. Professional shall forward a copy of any current petition or complaint in any court of law which (a) asserts a claim for $50,000 or more for errors or omissions in providing construction consultant services and/or (b) seeks to deny the Professional the right to practice construction consultant services or to perform any other services in the state of Texas. 16. Payroll and Basic Records a. Professional 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 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. Professional 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 days of the City's request therefor. Professional shall permit such representatives to interview Professional's employees during working hours on the job. 17. 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. 18. 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 Unites 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 8 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 the Professional: DE OPLOSSING, INC. Attn: President 358 Roswell Street, Suite 1200 Marietta, GA 30060 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. 19. No Third Party Beneficiary This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit Professional and the City only. 20. No Right to Arbitration Notwithstanding anything to the contrary contained in this Agreement, the City and Professional hereby agree that no claim or dispute between the City and Professional 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, Professional consents to be joined in the arbitration proceeding if Professional's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 21. 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. 9 22. Complete Agreement This Agreement represents the entire and integrated agreement between the City and Professional in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either 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 Professional accept and agree to these terms. 23. No Assignment Professional may not sell or assign all or part interest in the transport of the materials 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. 24. Headings The headings used in this Agreement are for general reference only and do not have special significance. 25. 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. 26. 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. 27. 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. 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 S day of April, 2004, the date of execution by the City Manager of the City of Baytown. DE OPLOSSING, INC. eJ SA ' (Signature) C. A- (Printed Name) RIM M (Title) 10 CITY B TOWN ARY JAC S N, City Manager ATTEST: --.)-- . G Y . SMITH, City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, SR., ty Attorney STATE OF TEXAS § § COUNTY OF HARRIS § Before me on this day personally appeared� .t�l, \t r 4 , in his J\capacity as... p�• ,3l' L .' \,\,,„ ,r , of de Oplossing, Inc., on behal of such company, / c� known to me; proved to me on the oath of ; or 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} (check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBE- e or me this da of 201a4 1 `,`,, JEANENE R.YOUNG y r Notary Public,State of Texas Q I' .1 Commission Expires Dec.7,2004 ,C/ � t Pub blie-in and for th to of T xas F:\Karen\Files\Engineering\Engineering Agreements\de Oplossing,Inc\EOC\Short Form PROFESSIONAL-CONTRACT.doc 11 EXHIBIT A Compensation Services required under this contract shall be a fee not to exceed FORTY-SEVEN THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($47,500.00) based upon time and materials at the standard hourly rate of NINETY-FIVE AND NO/100 DOLLARS ($95.00). EXHIBIT B REIMBURSABLE EXPENSES All costs for reimbursable expenses shall be a fee not to exceed TWO THOUSAND THREE HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($2,375.00), based upon the actual cost to the Professional for such expenses. EXHIBIT C TIME SCHEDULE The time schedule in which the Professional shall perform the services required in this Agreement is commensurate with the construction of the Baytown Emergency Operations Center. EXHIBIT D SCOPE OF WORK The Professional shall perform construction management services for the Emergency Operations Center for and on behalf of the City: 1. Construction Phase a. Construction Inspection and Surveillance i. Ensure compliance with Specifications and Plans ii. Examination of Project Performance iii. Review Progress/Schedule Compliance iv. Monitor Safety Protocol Compliance v. Provide Project Photos vi. Provide Weekly Report of Activities b. Project Controls i. Maintenance of Project Correspondence ii. Monitor Requests for Information/Interpretation iii. Documentation of Project Progress iv. Review of Pay Requests v. Review Schedule Updates c. Change Order Review i. Review Trade Contractors Change Order Requests ii. Coordinate Design Changes with Designer iii. Determine Responsibility or Changed Conditions or Coordination Conflicts iv. Review of Price and Schedule Changes d. Project Closeout i. Monitor Completion of Punch List ii. Check Warranty Closeout Documents iii. Resolve Closeout Issues iv. Review and Analyze Claims or Disputes Professional shall provide bi-weekly reports of the progress of the Project and monthly status reports of all issues, schedule concerns and comments and shall maintain all project documents and daily photos in a project binder, which will be delivered to the City upon Project completion. Professional shall minimize travel costs by coordinating site visits concerning Emergency Operations Center and the Baytown Police Academy Project.