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Ordinance No. 9,826ORDINANCE NO. 9826 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH CLARK CONDON ASSOCIATES, INC., FOR THE DESIGN OF THE LANDSCAPING PLAN FOR DECKER DRIVE; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED THIRTY THOUSAND AND NO /100 DOLLARS ($30,000.00); 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 l: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a professional services agreement with Clark Condon Associates, Inc., for the design of the landscaping plan for Decker Drive. 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 Clark Condon Associates, Inc., in an amount not to exceed THIRTY THOUSAND AND NO /100 DOLLARS ($30,000.00) for professional engineering services 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 /100 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 81h day of July, 2004. CALVIN MUNDINGER, Mayor ATTEST: GARY W, SMITH, City Clerk APPROVED AS TO FORM: k—AREN L. HORNER First Assistant Ci Attorne h' Y F:Ueanene \My Documents \Council\03- 04Uuly lst\ AuthorizeAgreement4DeckerDriveLandscaping .doc n u AGREEMENT FOR PROFESSIONAL SERVICES STATE OF TEXAS COLTNTY OF HARRIS This Agreement (this "Agreement ") entered into by and between Clark Condon Associates, 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 AgTtemeot authorizes Professional to perform landscape architectural services for Decker Drive (Spur 330) (the "Work'r) for and on behalf of the Ciry. The compensatio:r for Professional shall be on the basis described in Exhibit "A." The time schedules for the Work are attached as Exhibit "B." The scope of the work and projection of costs of the construction project is as denoted in Exhibit "C." Each of these Exhibits "A" through "C" is incorporated into this Agreement by referee= a for all purposes. 2. Progress Reports Professional shall provide written progress repots to the City rcgasding the Work and oral de at the time that approximately reports as requested. At least one progress report shall be ma seventy percent (70%'fl) of any phase as outlined in Exhibit "C" is completed. Such progess report shall identify the projected time and cost required by the Professional to complete title remaining phases of the Work required under this Abreernent. 3. personnel of the Professional a. Professional's Project Manager Professional shall designate Jamie Hendrixson 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 resurre 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. MOU A 4. Designation and Duties of the City's Representative a. The City's Director of Fsngine! ring 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, thc. 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 Agreer?lent arith 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 trade 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 file City to support the design and the suitability of the equipment. {3) All materials furnished on any City project shall be in accordance with ASTM specifications, or with other recognized standards. Proprietary material or other materials for which no generally recognized standards exist may be used provided there has been at least five years of proven experience in the field, and such satisfactory documentation has been approved by the City's Representative. (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 rninirnurn ® 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 2 • requirements that are equivalent or better than ftse in the above listed codes and regulations. She Professional shall state th;e alternative codes and regulations used. (6) Professional agrees the se —,:ices it provides as an experienced and qualified landscape architect will reflect the professional standards, procedures and performances common in Lhe 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 shail promptly comet 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 he ^eucder 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 fmal payment. 6. Schedule any stage thereof u Professional shall not proceed with the Work or until written notice to proceed is provided by the City s Representative. 7, instruments of Service Upon execution of this Agreement, Professional gams to the City an ownership interest in the Ins=ents of Service. Professional shall obtain similar interests frorn the City and Professional's consultants consistent with this Agreement. A3 noted in Articles 5 & 11, Professional shall be required to tender to City all Instr.nnertts of Service. With such ownership interest. it is expressly understood by the parties hereto that the City may use the Instru=ents of Service for any purposes which the City sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, andlor 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 terminated for cause by the City, the City shall mlease any and all claims which the City could make arising out of or in connection with any reuse of the documents by the City, g, Insurance Professional shall procure and maintain at its sole cost and expense fore pd�ation of the Agreement, insurance against claims for injures to person or damages to roe which may arise from or in connection with the perfomiance of the Work hereunder by Professional, its agents, revresentarives, 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 nd assigns as addironal 3 insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsuitants and assigns shall be subject to. all of the requirements stated herein. The following is a list o` standard insurance policies along with their respective minimum coverage arnounts required in this Agreement: 1, Commercial General Liability 0 General Aggregate: S1,000,000 r_, Products & Completed Operations Aggregate: S1.000,000 L Personal & Advertising Injury: 51,000,000 Per Occurrence: 5500,000 7 Fire Damage: $50,000 Coverage shall be at lest m broad as ISO CG 00 01 10 93 =i No coverage shall be deleted from standard policy without notification of individual occlusions being attached for review and acceptance. 2. Business Automobile Policy Combined Single Limits: $500,000 U Coverage for "Any Auto" Errors and Omissions Limit: 51,000,000 for this project. For all architects, engineers, and/or design companies i Claims -made form is acceptable -i Coverage will be in force for three O years after construction of the Project is completed. 4. Workers' Compensation ❑ Statutory Limits G Employer's Liability: $500,000 E Waiver of Subrogation required- b, The following shall be applicable to all policies of insurance required herein. 1, Insurance carrier must have an MA. Best Rating of A -:VIII or better. ?. Only insurance tamers 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 car, 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- 4 0 • 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. r 6. Upon request and without cost to ffie Cirf, certified copies of all insurance polices and/or certificates of insurance shall be furnished -,o the City. 7. Upon request and without cost co the City, loss runs (claims listing) of any and/or all insurance coverages shall he furnished to the Cite. 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 oa or before the effective date of this Agreement_ 9. Indemnification and Release PROFESSIONAL AGREES TO AMJ 1riALL Jk1'4"L1►'1Ll1.Lr A —" HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENT'S, AND EMPLOYEES (H:EREINAFTER REFERRED TO AS THE "CITY ,,) FROM AND AGAINST ANY AND ALL CLALNI IS, LOSSES, DANL4,GES9 CAUSES OF ACTION, SUITS AND LLABILITY OF EVERY KIND, IlNCLLDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF A:Nl' PERSON, FOR DAINIAGE TO ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT, ARISLNG OUT OF, OR IN CONNI ECTION 'WITH THE WORK DONE BY PROFESSIONAL UNDER THIS T PROFESSIONAL BY THE SOLE OR JOINT OF AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES THE HERETO, INDE ItNiTY PROFESSIONAL AND THE CITY, PROVIDED FOR IN THIS PARAGRAPH IS 12S- DENL`ITY BY CITY PROFESSIOitiAL TO LNA � FROM THE CONSEQUENCES OF PROFESSIONAL'S OWN NEGi.IGENCE, WHETHER THAT T TxEESULTINGNJURI, OR A CONCURRING CAUSE O DEATH OR DAMAGE. SUCH En'1NI� SHALL NOT �o� �' HOWEVER, TO LIABILITY INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT OF IS CAUSED BY OR RESULTS FROM .��A NEGLIGENCE A ��� OR THE CITY. IN THE EVENT nnnrr- rnTxr. Tq RROUGrHT AGAINST THE CITY FROM & J6%— _, 5 • WHICH THE CITY IS INDE 'NItiI°IED, PROFESSIONAL FURTHER AGREES kN-D COVENANTS TO DEFEND THE ACTION OR PROCEEDLyG BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE MEMNITY PROVIDED i FOR IN TV-IS ARTICLE LAC SHALL SUR'J E TIIF TERi%,IIN...TION OR EXPIkkTION OF THIS AGREENIENT, By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revolter 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 ware 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 witty 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. 10. Subcontractors aad Sub cons ultants Professional shall mceive written approval of the Cir/s Representative prior to the use of any subcontractors or subconsultants. A copy of all prQpOse(I I such contra hsubconsultarits andlor subcontractors shall be given to the City befor it. Termination of Professional The City, besides all other rights or remedies it may have, shall have the right to terrriina *.e this Agreement without cause upon ten (10) days' written notice from the City Manage: '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 Agreemept. A breach of this Agreement shall include, but not be limited to, the following: (a) failing to pay insurance premiums, lions; 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 ta.Xes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against Pru essronal; (d) the dissolution of Professional; (e} refusing or failing to prosecute gyre Work or any separable part, with the diligence that will ensure its comple-tion within the time specified in this ® Agreement; (f) ,ailing to complete worlc 'Arpin the time period specified in this .agreement; and/or y (g) the violation of any provision of this Agreement. Upoil delivery of any noti,:e 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 documentatio-, . 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 Agreemert. 12, Records will be entitled to review Within ten days of the Ciry s request and at no cost to the City, the City and receive a copy of all documents that indicate work on the project that is the subject of this Agreement. 13, Supervision of Professional control the d is independent pernf ned and Professional under the terms of this Agreement. 14, to control th 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. Reptttation in the Community Professional shall retain a high reputation in the cororrunity for providing professional engineering services. Professional shall forward a copy of any current petition or complaint in any court of law which (a) asserts a claim for 550,000 or more for errors or omissions in providing engineering services and/or (b) seeks to deny the Professional the right to practice engineering services or to perform any other services in the slate of Te.Yas. 15. Payroll and Basic Records a. Professional shall maintain payrolls and basic payroil 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 won'.{ called £or 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 stake 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 furt.'ier agree that performance and all matters related thereto shall be in Harris County, Texas. 18. Notices Unless otherwise provided in this Agreemwnt, any notice provided for or permitted to be given must be in writing and delivered in person or by depositno same in the United States mail, pestpaid atd 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 Citv: For the Professional: CITY OF BAYTO%'N Attn: City Manager P. O. Box 424 Baytown, Texas 77522 -0424 CLARK CONDON ASSOCIATES, INC. Ann: President 5177 Richmond Ave., x#1075 Houston, TX 77056 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 parry. 19. No Third Party Beneficiary This Agreemcnt shall not bestow any rights upon any third party, but rather, shall bind and benefit Professional and the City only. • 2p. No Right to Arbitration Notwithstanding anything to the contrary contained in this Agreement, the City and professional Tel tang hereby agree that no claim or dispute between the City and Professional arising out of or relating to this Agreement shall be decided b7 aay arbitration proceeding'includiag, without limitation, • any proceeding under the Federal Arbitration Act (9 L.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 Professiona['s presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 22. 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 Germ or condition or subsequent waiver of the same term or condition. 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 inszurnent 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 wrinea approval of the City Manager of such sale or assigrunent. 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. 2.5. Severabiiity 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 n5 of this In the event of any sere o on in y of that ten u b party did Agreement, did not authorlthe s�eonstrued for or against any party h A. Authority The officers executing this Agreement on behalf of the parties nereby represent that such cfficers have full authority to execute this Agreement and to bird the party he /she represents. ® IN WITNESS WHEREOF, d to beean oeriginaL but al! cf which shall co constitute but one copies, each of which sball be 0 C] and the same Agreement or. the day of June, 2004, the date of execution by • the City Manager of the City of Baytown. CLARE COlv'DON ASSOCIATES, INC. SAEILA M. CO ON; President CITY OF BAYT0WTi GARY JACKSON, City Manager ATTEST: Gay W. SN9TH, City Clerk APPROVED AS TO FORM: IC NACIO RAIMIREZ, SR., City Attorney STATE OF TEXAS COUNTY OF HARRIS § • a er Before me an this day personally apo amd shs r —rn °n �n behalf inhc r Of capacity as re s such company, known to me; proved to me on the oath of ; or proved to me through her current (description of identification card or other doeianent issued by the federal goverment or any state government that contains the photograph and signature of the acknowledging person) one) to be the person whose name is subscribed to the forcgoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Z� � � SUBSCRIBED ANA SWORN before me this day of.15tlS�- --- oa4. NtT Notary Public in and for the Statc of Texas gE 1 MY ContmNluan COW � 10 pupu1t 31, 2004 �.4 • 4:li: Basic Services Services and USA -NA AND expenses required undei NO /100 DOLLARS (S30,000-00) eandeshall not exceed the Ti-FM FIVE THO amount specified hereinbelcw for each phase of service: Service Fee Not•taliceed $ 5000-00 Preli $ 6,400.00 Desi Devel mint $ 16 000.00 Construction Documents S 31000.00 Reimbursable Ex erases TOTAL, S30MOAG The fees will be calculated based upon the standard hourly rates detailed hereinbelow: PERSONNEL MATE SCHEDULE Personnel. Untt Price Unit S 125.00 Haar rival $ 90.00 kiotu — ect �tana s— 85.00 Hour iQner I S 75.00 Assi9tant III ect LNian S 60.00 1 Hour CpD(Dr S 55.00 V Hour e'fmin;strative REIMBURSABLE EXPENSE RATE SCHEDULE Arty expenses for travel must be pre - approved in writing by the Citv Engineer- If not so approved, such expenses will not be subject to reimbursement. ADDITIONAL SERN ICES Additional services requested in writing by the City shall be subject to the rate schedules listed hereinabove. 0 TIM SCHEDULE The work shall be completed by the date indicated hereinbelow for each phase of work: I* C: vt•d _H101 19 4.1 : SCOPE OF WORK Professional shall perform the following landscape architectural design associated with the Landscaping of Decker Drive (Spur 330): EMiiminaa Plans prepare a landscape concept plan with a cost estimate for 43 miles of Decker Drive (Spur 330). The Phase I budget is $300,004.00. Services in this phase will include. 1. Meet with City to discuss the scope. 2. Visit the site to become familiar with the project area. 3. Obtain drawings from TxDOT to use as base plans. 4. Review conceptual ideas with the City and refine design and cost estimate. 5. present conceptual design to City Council. 6. Refine concepts based on City Council input, 7. Prepare phase plan with associated costs if necessary. 8. Review plans with TxDOT representatives. ap- i cn Devel Ment During this phase, Professional will refine the design and budgets prepared based on the preliminary plans. Design Development plans will depict actual materials, sizes and locations of all landscape elements, Services in this phase will include: 1. Materials selection for all landscape elements. 2. Review meetings with City and TxDOT to review plans. 3. One presentation to City Council. 4. Cost estimates based on Design: Development Plans, 5. Obtain soils PH information from TxDOT. Construction Doc The Construction Documents phase will be initiated after the City's approval of the Design Development Plans. The Professional will prepare all Construction Documents and Technical Specifications for bidding of the landscape and irrigation improvements. Services in this phase will include: 1. Planting plans including all tree, shrub, vine, turf and groundcover selections for all locations. A plant list including plant names, sizes and character desired will be provided. 2. Prepare irrigation plans to meet TxDOT approval, including specifications, identification, location and sizing of the irrigation system and its component parts. 3. Specifications in Standard CSI Formal 4. Final construction estimate to include unit costs at current construction dollars. ® 5. Plans will be prepared in the required 11x17 TxDOT for_rmt. A] mpletion and approval of the construction document, the Professional will provide the City and TxDOT with plans for bidding. TxDOT will bid the project.