Ordinance No. 9,928ORDINANCE NO. 9928
• 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 AN AGREEMENT FOR A COST
DETERMINATION FOR THE METER REPLACEMENT PROGRAM WITH
THIELSCH ENGINEERING, INC.; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN OF AN AMOUNT NOT TO EXCEED THIRTY THOUSAND AND
NO 1100 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 an Agreement for a Cost Determination
for the Meter Replacement Program with Thielsch Engineering, Inc. 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 Thielsch
Engineering, Inc., in an amount not to exceed THIRTY THOUSAND AND NO /100 DOLLARS
($30,000.00) for services in accordance with the agreement authorized in Section I hereof.
Section 3: That in addition to the amount specified in Section 2 hereof, 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 26th day of October, 2004.
CALVIN MUNDINGER, Mayor
ATTEST:
-;"A_
GAR, W. SM' 11. H; City Clerk
APPRG`v,F.D AS TO FORM:
NACIO RAMIREZ, SR.&hty Attorney
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AGREEMENT FOR COST DETERMINATION FOR
METER REPLACEMENT PROGRAM
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement for Cost Determination for Meter Replacement Program (this "Agreement ") is
made and entered into as of the Effective Date by and between the CITY OF BAYTOWN,
TEXAS, a municipal corporation situated in Harris and Chambers Counties, Texas, acting by and
through its governing body, the City Council of the City of Baytown, Texas (the "City "), and
THIELSCH ENGINEERING, INC., a Rhode Island corporation that is authorized to do business
in the state of Texas (the "Company ").
RECITALS
WHEREAS, the City of Baytown will be entering into an interlocal agreement with the
City of Pearland for the City of Baytown's water meter change -out and retrofit program and a water
meter supply contract; and
WHEREAS, Southwest Stainless, L.P., d/b /a Hughes Supply ( "HSI ") is the contractor who
will perform the services under such contract; and
WHEREAS, Water Management Services, a division of Thielsch Engineering Inc., is a
subcontractor of HSI and will perform services under the HSI agreement; and
WHEREAS, the City of Baytown desires to have a firm cost for labor to replace the 200
meters identified by the City prior to entering into an agreement and obligating any funds; and
WHEREAS, Water Management Services, a division of Thielsch Engineering Inc., has
agreed to perform a cost estimate and provide recommendations with respect to the City's water
meter change -out and retrofit program; and
NOW THEREFORE, for and in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the Parties hereto do hereby mutually agree as
follows:
I.
Company's Obligations
1.01 The Company shall survey up to two hundred (200) water meters selected by the City and
shall provide a firm cost for labor to replace each meter. The Company agrees to perform
the services at the price indicated as a subcontractor of HSI, with whom the City will
enter into a contract through an interlocal agreement with the City of Pearland.
E)MIT A
Agreement for Cost Determination for Meter Replacement Programs, Page 1
• 1.02 The Company shall also provide drawings of existing installations with recommendation
for replacement meter by size and type. The drawing shall also include recommended
additions or deletions to the City's existing system.
•
1.03 The Company shall provide a list of parts required for meter replacement as well as any
parts necessary for new installation in accordance with the recommendations provided in
Section 1.02 herein.
1.04 The Company shall perform all services under this Agreement with the care and skill
ordinarily used by members of Company's profession practicing under the same or
similar circumstances, time and locality. The Company hereto shall comply with all
rules, regulations, and laws of the United States of America, the State of Texas, and all
laws, regulations, and ordinances of the City of Baytown as they now exist or may
hereafter be enacted or amended.
1.05 Upon execution of this Agreement, Company grants to the City an ownership interest in
its instruments of service pertaining to the services to be performed herein.
1.06 The Company shall perform the services herein and obtain the City's approval of the
same within four months after the effective date hereof. Time is of the essence in this
Agreement.
II.
Fees
The Company hereby convnits to performing the services specified herein at a cost per
meter surveyed of ONE HUNDRED FIFTY AND NO /100 DOLLARS ($150.00). The parties
understand and agree that the total amount for which the City will be liable under this Agreement
shall not exceed THIRTY THOUSAND AND NO 1100 DOLLARS ($30,000.00).
III.
Tenn
The term of this Agreement shall begin on the date signed by the City Manager and shall
continue in full force and effect until the Project is completed and accepted by the City
Purchasing Manager.
IV.
Indemnity
THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS,
Agreement for Cost Determination for Meter Replacement Programs, Page 2
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITY
OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEYS' FEES, DUE TO ACTIVITIES OF
THE COMPANY, ITS AGENTS OR EMPLOYEES, PERFORMED
UNDER THIS AGREEMENT AND WHICH RESULT FROM ANY
NEGLIGENT ACT OR OMISSION BY THE COMPANY, ITS AGENTS,
EMPLOYEES, OR SUBCONTRACTORS � THE COMPANY SHALL
FURTHER 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, ARISING OUT OF OR IN CONNECTION WITH
THE VIOLATION OF ANY THIRD PARTY'S TRADE SECRETS,
INFORMATION, TRADEMARKS, COPYRIGHT OR PATENT RIGHTS
IN CONNECTION WITH THE COMPANY'S PERFORMANCE OF
THE SERVICES UNDER THIS AGREEMENT. THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND /OR LIABILITY TO THE EXTENT THE INJURY,
LOSS OR DAMAGE RESULTS FROM THE NEGLIGENCE OF THE
CITY.
In the event that any action or proceeding is brought against the City by reason of any
matter from which the City is indemnified herein, the Company further agrees and
covenants to defend the action or proceeding by legal counsel acceptable to the City.
This article shall survive the expiration or termination of this Agreement.
V.
Payment
The City shall pay the Company only for services actually performed and accepted. Such
payment shall be within thirty (30) days after the City's receipt of an invoice for such services or
upon receipt and acceptance of the services and the corresponding surveys, whichever is later.
The Company may submit invoices at intervals it deems appropriate; provided that no more than
two invoices may be submitted in any one month.
VI.
Release
By this Agreement, the City does not consent to litigation or suit, and the City hereby
• expressly revokes any consent to litigation that it may have granted by the terms of this
Agreement or any other contract or agreement, any charter, or applicable state law. Nothing
A reernent for Cost Determination for Meter Renlacernent Programs, Page 3
• herein shall be construed so as to limit or waive the City's sovereign immunity. The Company
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 the Company's work to be performed hereunder. This
release shall apply with respect to the Company's work regardless of whether said claims,
demands, and causes of action are covered in whole or in part by insurance.
•
VII.
Insurance
Throughout the term of this Agreement, the Company 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 Company's services, whether
such services be by the Company, 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 Company'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 Company's insurance and
shall not contribute to it. All coverage for subcontractors shall be subject to all of the
requirements stated herein.
The following insurance shall be required under this Agreement and shall meet or exceed
the minimum requirements set forth herein:
Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• 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
■ This coverage shall be required only if the company provides vehicles for
its employees.
• Combined Single Limits: $1,000,000
• Coverage for "Any Auto"
Agreement for Cost Determination for Meter Replacement Programs, Page 4
O 3. Workers' Compensation
■ Statutory Limits
■ Employer's Liability $500,000
■ Waiver of Subrogation required.
•
Prior to any services being performed, the Company shall file with the City valid
Certificates of Insurance and endorsements acceptable to the City. Such Certificates shall
contain a provision that coverage afforded under the policies will not be canceled,
suspended, voided, or reduced until at least thirty (30) days' prior written notice has been
given to the City via certified mail, return receipt requested.
The Company shall also file with the City valid Certificates of Insurance covering all
subcontractors.
The following are general requirements applicable to all policies:
9 AM Best Rating of A -; V1I or better.
➢ Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
➢ 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. Certificates of insurance showing evidence of insurance coverage
shall be provided to City of Baytown's representative prior to any work being
performed at the site.
9 Liability policies must be on occurrence form.
➢ Each insurance policy shall be endorsed to state that coverage shall not be suspended,
voided, canceled or reduced in coverage or in limits except after thirty (30) days'
prior written notice by certified mail, return receipt requested, has been given to the
City.
The City, its officers, agents and employees are to be added as Additional Insureds to
all liability policies.
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.
Upon request of and without cost to City of Baytown, loss runs (claims listing) of any
and/or all insurance coverage shall be furnished to City of Baytown's representative.
VIII.
No Assignment
The Company shall not sell, assign, or transfer any of its rights or obligations under this
Contract, in whole or in part, without prior written consent of the City.
Agreement for Cost Determination for Meter Replacement Pro rams, Page 5
Ix.
Independent Independent Contractor
Any person performing any service for the Company under this Agreement shall be
deemed to be and independent contractor. Such person shall not be an employee of, nor have a
contractual relationship with City.
X.
Termination
The City, besides all other rights or remedies it may have, shall have the right to
terminate this Agreement with or without cause upon ten (10) days' written notice from the City
Manager to the Company of the City's election to do so. Furthermore, the City may immediately
terminate this Agreement if the Company breaches the terms hereof. A breach of this Agreement
shall include, but not be limited to, the following:
i failing to pay insurance premiums, claims or other charges;
2. failing to pay any payments due the City, State or Federal Government from the
Company or its principals, including, but not limited to, any taxes, fees,
assessments, liens, or any payments identified in this Agreement;
3. the institution of voluntary or involuntary bankruptcy proceeding against the
Company;
4. the dissolution of the Company;
5. the violation of any provision of this Agreement; and/or
6. the abandonment of the Agreement or any portion thereof and discontinuance of
the Company's services or any portion thereof, as determined by the City
Manager.
Upon delivery of any notice of termination required herein, the Company shall
discontinue all services in connection with the performance of the Agreement. Within ten (10)
days after receipt of the notice of termination, the Company 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, including, but not limited to, all
instruments of services for which payment has been made or is being requested.
XI.
No Arbitration
• Notwithstanding anything to the contrary contained in this Agreement, the City and the
Company hereby agree that no claim or dispute between the City and the Company arising out of
Agreement for Cost Determination for Meter Replacement Programs, Page 6
or relating to this Agreement shall be decided by any arbitration proceeding including, without
O 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, the Company consents to be joined in the arbitration proceeding
if the Company's presence is required or requested by the City of complete relief to be recorded
in the arbitration proceeding.
XII.
Notice
Unless otherwise provided in this Contract, 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
described above shall be conclusively deemed to be effective, unless otherwise stated in this
Contract, 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 hereinbelow:
CITY OF BAYTOWN
Attn: City Manager
P. O. Box 424
Baytown, Texas 77522 -0424
THIELSCH ENGINEERING, INC.
Water Management Services (WMS) Division
ATTN: Trent Theroux
195 Frances Avenue
Cranston, RI 02910
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.
XIII.
Non - waiver
Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any right
or remedy occurring as a result of any future default or failure of performance.
Ap,reement for Cost Determination for Meter Replacement Programs, Page 7
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XIV.
Choice of Law and Venue
This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas.
XV.
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.
XVI.
No Third -Party Beneficiaries
This Agreement shall not bestow any rights upon any third party, but rather, shall bind
and benefit the Company and the City only.
XV11.
Entire Agreement
This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties.
XVIII.
Headings.
The captions of the articles and sections, if any, of this Agreement are for convenience
and ease of reference only and do not define, limit, augment or describe the scope, content or
intent of this Agreement or of any part or parts of this Agreement.
M.
Ambiguity
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.
Agreement for Cost Determination for Meter Replacement Programs, Page 8
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 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, this day of September, 2004.
CITY OF BAYTOWN, TEXAS
By:
GARY JACKSON, City Manager
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
THIELSCH ENGINEERING, INC.
Bey: - I
,-e —A-� •.'1n t r 0 7�
(Printed Name)
�4ec�
(Title)
�w
STATE OF
COUNTY 0F `(C §
Bef°� -die on is ersonally appeared Cz � U in his
Ocapacity as I��'�� ►'t -�A/, of Thielsch Engineering, Inc., on behalf of such
Agreement for Cost Determination for Meter Replacement Programs, Page 9
corporation, known to me 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.
,
SUBSCRIBED AND SWORN before me this � day of-Septefftber, 2004.
Notary Public in an /d� r the State of Rhode Island
County
MYCOMMISSION EXPIRES
JULY 29, 2006 .
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