Ordinance No. 11,487ORDINANCE NO . 11,487
AN ORDINANCE OF T111" CITYCOUNCIL, OFFIIE� CIFFY (A'BAYTOWN, 11,"XAS,
AUTHORIZING AND 1)IRFICTIM-1 T111'"," CITY NIANACA"It TO 1"XEC1L.T]", AND
THE CITY CLE'RK TO M"1.1:, 1. TO THE" PROl"E'SSI(MAL SF,RVJCI-'.S
PI LIRCE' GOODWIN ALEXAN DLR& LINV 11J.1", INC, FOR
[)It( I )FESSIONAL St"RVICE"S F'OR THE CD13G NON-HOUSING, BUI1,DING AND
STRUCTURAL IMPROVEM1,1'NT PROJECT; AUTHORIZING PAYME"NT BY THE
CITY OF BAYTOWN IN AN AMOUNT NOT TO F1'XCFF,'D ONFw HUNDRED
SIXTE'EN THOUSAND AND NO/100 DOLLARS ($11(x,000.00); MAKIN(i OTHEIR
11R()VISIONS RELATFID TIIEIZETO, AND PROVIDING FOR '11,11" I"FFFICTIVI:
IAA -1 F'11 IF.'R F� 0 F.
13F ITORDA IN F"D BY "I I F" CITY COUNC 11. OFTHE ( I ITY OF BAY TONVN,TF1'XAS:
section 1: That the City Council of the City of' Baytown, Texas, hereby awhorizes and
directs the Clity Manager to execute and the City Clerk to attest for the Professiowd Services Agrcenient
with Pierce Q)ockvin Alexander & Linville, Inc., for professional services, for the CIDBG Non-Housing,
Building and Structurfl Improvement Project. A copy of the agreement is attachcd hereto, marked
g
Exhibit "A," and made as part hercoffor all intents and purposes.
Section 2: I'luat the City Council of the City of Baytown authorizes payment to Pierce
Goodwin Alexander LK, Linville, Inc., as Iump sum amount of ONE HUNDRED S[X'1'1,:[,'N '111OUSAND
AND NO/ 100 DOLLARS ($116,000.00) on as percentage of"complctioa basis for prolessional services in
accordance with the agreement authorized in Section I hereinabove.
Scction 3: That the City Manager is hereby granted gencral authority to approve as decrease
or ail increase in costs lay TWF,NTY-F*IVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less,
provided that the aniouni authorized in Section 2 hercof niay not be increased by more than twenty-five
percent (25%'). �Iy
INTRODUCED, READ,and PASSE'D by theallirmative vol 61"the City Council ofthe City of
Baytown, fit is the I I" day, ol'November, 201 O A
APPROVED AS "1 FORNk
J.3 ayC IO RAMIRLIZ, SR.,Cil.yA I't" aaey
DONCARLOS,
It XwoVhlo 0 Comm a (A d I I I m1 I wc�%M I 11'6 A 1, A Fraxgncnt, I CD13GNfM- I I MOWJ ,Sl WOUM I I I I I PIMCMUfltS dOU
CONTRACT
PART I
PAGREEME T
THIS AGREEMENT, entered into this (Pday of U 2010, by and between the
CITY OF BAYTOWN, hereinafter calle the "City," and PIERCE, GOODWIN, ALEXANDER & LINVILLE,
INC., hereinafter called "Firm."
WITNESSETH THAT:
WHEREAS, the City of Baytown desires to implement a building improvement project under the general
direction of the Texas Department of Rural Affairs' CDBG Disaster Recovery Entitlement Grant Program;
and
WHEREAS, the City desires to engage the Firm to render certain services in connection with its building
improvement project;
NOW THEREFORE, the parties do mutually agree as follows:
1 Scope of Services
Part II, Scope of Services, is hereby incorporated by reference into this Contract. Further, the
performance standards relating to specially authorized public facilities - 14, which is incorporated
into the Texas Department of Rural Affairs Contract No. DRS010220, CDBG Disaster Recovery
Entitlement Grant Program (the"Grant"), and as hereinafter amended, are incorporated herein by
this reference and are included as the Scope of Services required for the project. All services
shall be performed in accordance with and meeting all of the requirements of the Grant.
2 Time of Performance. The services of the Firm shall commence on the issuance by the City of a
written notice to proceed. In any event, all of the services required and performed hereunder
shall be completed no later than March 6, 2012.
3 Access to Information.
a. Except as provided in subsection b, it is agreed that all information, data, reports and
records and maps as are existing, available and necessary for the carrying out of the
work outlined above shall be furnished to the Firm by the City and its agencies. No
charge will be made to for such information and the City and its agencies will cooperate
with the Firm to facilitate the performance of the work described in the contract. Nothing
contained in this section or Contract shall be construed to require the City to provide such
records in any certain format. The format in which the existing data and documentation
will be provided shall be at the sole discretion of the City.
b. The Firm understands and agrees that any and all GIS data provided by the City and
copies of the same (i) are property of the City; (ii) shall not be given, sold, or otherwise
distributed to other parties in any way; and (iii) will be deleted and/or destroyed at the
conclusion of this Contract. Upon completion of this Contract and prior to final payment
by the City for the same, the Firm shall provide a sworn statement from an appropriate
officer of the Firm to the Director of Information Services Department, certifying that the
data has been deleted from all computers systems on which it was used or placed and
that all other copies have been destroyed. The Firm understands that certain data sets
are licensed to the City and distribution to parties not authorized is a direct violation of the
licensing agreement. Failure to comply with any applicable license agreement or the
terms hereof will result in irreparable damage to the City for which it may seek legal and
equitable relief, including attorney's fees.
1
4 Compensation and Method of Payment.
a. The maximum amount of compensation and reimbursement for all services to be paid
hereunder shall not exceed (1) fifteen percent (15 %) of the amount bid by the successful
bidder of the Project or (ii) ONE HUNDRED SIXTEEN THOUSAND AND NO /100
DOLLARS ($116,000.00), whichever is less. Payment to the Firm for basic engineering
services shall be in the amount of SIXTY -FOUR THOUSAND AND NO /100 DOLLARS
($64,000.00) and to be paid based on satisfactory completion of identified milestones in
Part III 'Payment Schedule" of this Contract. Payment to the Firm for Special Services
shall be In the amount of FIFTY -TWO THOUSAND AND NO /100 DOLLARS ($52,000.00)
and to be paid per method described in Part III and Invoiced no more frequently than
once monthly.
b. The City has no City funds for the services to be rendered under this Contract. It is
expressly agreed and understood that this Contract is predicated and conditioned upon
the City receiving funds for the purpose of paying the entire obligation of the City under
this Contract from funds to be received from the Grant. The Firm agrees that the City will
not be responsible for the payment for services If the Grant funds referenced hereinabove
are not available for the payment of the same.
5 Indemnification. —The Firm shall comply with the requirements of all applicable laws, rules and
regulations. and shall exonerate, and hold harmless the City and its agency members from and
against them, and shall assume full responsibility for payments of Federal, State and local taxes
on contributions imposed or required under the Social Security, workers compensation and
Income tax laws.
THE FIRM AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND
DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES
(HEREAFTER 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 TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN
ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY
INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER
COMMITTED BY THE CONSULTANT OR THE CONSULTANTS AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S
PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH CONSULTANT AND THE CITY, THAT THE INDEMNITY PROVIDED FOR
IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF CONSULTANTS
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS
WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL TORTS,
INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE
PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT.
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
ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY
FROM WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER AGREES
AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL
COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED
HEREINABOVE SHALL SURVIVE THE TERMINATION AND /OR EXPIRATION
OF THIS CONTRACT.
6. Miscellaneous Provisions
a. This Contract shall be construed under and in accordance with the laws of the State of
Texas, and all obligations of the parties created hereunder are performable in Harris
County, Texas.
b. This Contract shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors and
assigns where permitted by this Contract.
C. In any case one or more of the provisions contained in this Contract shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision thereof and this Contract shall not be
construed as if such invalid, illegal, or unenforceable provision had never been contained
herein.
d. If any action at law or in equity is necessary to enforce or interpret the terms of this
Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs, and
necessary disbursements in addition to any other relief to which such party may be
entitled.
e. This Contract may be amended by mutual agreement of the parties hereto and a writing
to be attached to and incorporated into this Contract.
F. The Firm shall perform all services under this Contract with the care and skill ordinarily
used by members of the Firm's profession practicing under the same or similar
circumstances, time and locality.
g. Upon execution of this Contract, the Firm grants to the City an ownership Interest in the
Instruments of Service. The Firm shall obtain similar interests from the City and the Firm's
consultants consistent with this Contract The Finn shall be required to tender to City all
Instruments of Service upon expiration or earlier termination of this Contract 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 the Firm's name and all references to the Firm and its consultants from
the Documents. Provided that this Contrast is not temninated 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.
h. The Finn shall procure and maintain at Its sole cost and expense for the duration of the
Contract, Insurance against claim for injures to person or damages to property which may
arise from or in connection with the performance of the Work hereunder by the Firm, its
agents, representatives, volunteers, employees or subconsultants.
(1) The Firm'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
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(g) 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.
(h) 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 the Firm. The Firm shall provide copies of insurance
policies required hereunder to the City on or before the effective date of
this Contract.
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 United
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 herein below:
For the City:
CITY OF BAYTOWN
Attn: City Manager
P. 0. Box 424
Baytown, Texas 77522 -0424
FAX: 281 - 420 -6586
For the Firm:
PIERCE, GOODWIN, ALEXANDER & LINVILLE, INC.
3131 Briarpark Drive, Suite 200
Houston, TX 77042
FAX: 713 -968 -9333
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.
j. This Contract shall not bestow any rights upon any third party, but rather, shall bind and
benefit the Firm and the City only.
k. Notwithstanding anything to the contrary contained in this Contract, the City and the Finn
hereby agree that no claim or dispute between the City and the Firm arising out of or
relating to this Contract 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, the Firm consents to be joined in the
arbitration proceeding if the Firm's presence is required or requested by the City for
complete relief to be recorded in the arbitration proceeding.
I. No waiver by either party to this Contract of any term or condition of this Contract shall be
deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
5
m. This Contract represents the entire and integrated agreement between the City and the
Firm 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 Contract may only be amended by written instrument approved and
executed by both of the parties. The City and the Firm accept and agree to these terms.
n. The headings used in this Contract are for general reference only and do not have
special significance.
o. In the event of any ambiguity in any of the terms of this Contract, it shall not be construed
for or against any party hereto on the basis that such party did or did not author the
same.
p. The officers executing this Contract on behalf of the parties hereby represent that such
officers have full authority to execute this Contract and to bind the party he/she
represents.
8. Terms and Conditions -This Contract is subject to the provisions titled, "Part IV Terms and
Conditions"and attached hereto and incorporated by reference herein.
IN WITNESSE EREOF, the parties have hereunto set their hands and seals.
CITY BAYTO FIRM: PIERCE GOODWIN
LEXANDER& LINVILLE, INC.
B . BY:_
City Man
'PIS' — - ceo
(Title)
6
PART 11 PROFESSIONAL ENGINEERING SCOPE OF SERVICES
The Firm shall render the following services necessary for the development of the project:
SCOPE OF BASIC SERVICES
1. Attend preliminary conferences with the City regarding the requirements of the project.
2. Determine necessity for any acquisition of any additional real property/easements1ROWs for the
CDBG project and, if applicable, fumish to the City:
D Name and address of property owners;
Legal description of parcels to be acquired; and
>, Map showing entire tract with designation of part to be acquired.
3. Coordinate any necessary surveys of existing rights -of -way, topography, utilities, or other field
data required for proper design of the project. Provide consultation and advice as to the necessity
of the City providing or obtaining other services such as auger borings, core borings, soil tests, or
other subsurface explorations; laboratory testing and inspecting of samples or materials; other
special consultations. The Firm will review any tests required and act as the City's representative
in connection with any such services.
4. Prepare railroad /highway permits.
5. Prepare a preliminary engineering/architectural study and report on the project in sufficient detail
to Indicate clearly the problems involved and the alternate solutions available to the City, to
include preliminary layouts, sketches and cost estimates for the project, and to set forth clearly
the Firm's recommendations: to be completed within 21 days of contract execution.
6. Fumish the City 3 paper copies and one electronic copy In pdf format of the preliminary report, if
applicable (additional copies will be fumished to the City at direct cost of reproduction);
7. Fumish the City a written monthly status report at least seven (7) days prior to the second
regularly scheduled council meeting until the project is closed by the Texas Department of Rural
Affairs (TDRA). The format for this report shall meet the approval of the City Engineer.
8. Submit detailed drawings and plans/specifications to appropriate regulatory agency(ies) and
obtain clearance. All submissions will be approved in writing by the City Engineer prior to
submission to other regulatory agencies.
9. Prepare bid packet/contract documentsladvertisement for bids. At the time the bid packet is
completed, the Firm shall also furnish to the City an updated written Estimate of Probable Costs
for the Project.
10. Make 10-day call to confirm prevailing wage decision issued by TxCDBG.
11. Incorporate any and all wage rate modifications or supersedes via bid addendum (if applicable).
12. Attend mandatory prebid meeting, issue addenda as necessary to clarify the project, conduct hid
opening, provide a recommendation for award, prepare all necessary minutes as requested by
the City Engineer, and assist with bid protests and rebidding.
13. Tabulate, analyze, and review bids for completeness and accuracy.
14. Accomplish Construction Contractor eligibility verification.
15. Conduct pre - construction conference and prepare copy of reports /minutes.
F
16. Issue Start of Construction Notice to TCDBG and Notice to Proceed to construction contractor.
17. Provide in all proposed construction contracts deductive alternatives where feasible, so that
should the lowest responsive base bid for construction exceed the funds available, deductive
alternatives can be taken to reduce the bid price.
18. Design for access by persons with disabilities to facilities to be used by the public in accordance
with Public law 504.
19. Use the City's form for instructions to bidders, general conditions, contract, bid bond,
performance bond, payment bond, and maintenance bond that have TxCDBG approval, as
required.
20 Make periodic visits, no less than every 30 days during the construction period, to the site to
observe the progress and quality of the work and to determine if the work Is proceeding In
accordance with the Contract.
21. Consult with and advise the City during construction; issue to contractors all instructions
requested by the City; and prepare routine change orders if required, at no charge for engineering
services to the City when the change order is required to correct errors or omissions by the Finn;
provide price analysis for change orders; process change orders approved by City and the project
engineer /architect and submit to TxCDBG for approval prior to execution with the construction
contractor.
22 Review shop and working drawings furnished by contractors for compliance with design concept
and with information given in contract documents (contractors will be responsible for dimensions
to be confirmed and correlated at job site).
23. Resolve all payment requests within 10 days of receipt of signed pay request from the
Construction Contractor.
24. Based on the Firm's on -site observations and review of the contractor's applications for payment,
determine the amount owed to the contractor in such amounts; such approvals of payment to
constitute a representation to the City, based on such observations and review, that the work has
progressed to the point indicated and that the quality of work is in accordance with the plans,
specifications and contract documents.
25. Attend on -site project meetings as and when requested by the City Engineer, prepare minutes of
the same, take photos and make reports of progress.
26. Recommend that appropriate retainage be withheld in accordance with V.T.C.S., Government
Code §§ 2253.001, et seq., from all payments on construction contracts until final acceptance by
the City and approval by TxCDBG, unless State or local law provides otherwise.
27. Prepare Certificate of Construction Completion and Clean Lien Certificate. A Clean Lien
Certificate shall be prepared for each of the Prime Contractor(s) and each of the subcontractor(s).
28. Conduct interim/final inspections.
29. Revise contract drawings to show the work as actually constructed, and famish the City with a set
of "record drawings" plans.
30. The Firm will provide a copy of the final project record drawing(s) engineering schematic(s), as
constructed using funds under this contract. These maps shall be provided in digital format
containing the source map data (original vector data) and the graphic data in files on machine
readable media, such as compact disc (CD), which are compatible with computer systems owned
or readily available to the City. The digital copy provided shall not include a digital representation
of the engineers seal but the accompanying documentation from the engineer shall include a
signed statement of when the map was authorized, that the digital map is a true representation of
the original sealed document, and that a printed version with the seal has been provided to the
City. In addition, complete documentation as to the content and layout of the data files and the
name of the software package(s) used to generate the data and maps shall be provided to the
City in written form.
SCOPE OF SPECIAL SERVICES
1. Preliminary Evaluation of Project Scope
a. Advise as to the necessity of City's providing additional data or services of the types
which are not part of Firm's Basic Services, and assist City in obtaining such data and
services.
b. Identify and evaluate potential solutions available to City; and after consultations with
City, recommend to City those solutions, which in Firm's judgment meet City's
requirements for the Project.
C. Perform or provide the following additional Preliminary Evaluation of Project Scope tasks
or deliverables:
I. Initial facility inspection by Firm.
ii. Generator load calculations for each site to receive a generator to estimate
generator KW size and approximate dimensions and weight
iii. Preliminary site layouts with natural ground elevation, 100 -year floodplain
elevation, and approximate generator location.
IV. Structural and architectural assessment to determine the adequacy of each
existing structure to accept and receive protective coverings (screens and/or
shutters) and perform per the specifications of the covering. Roofing and
associated structural will be assessed at the EMS building only.
V. Prepare a report to show the findings and recommendations
d. Provide the City with necessary documentation to support any changes requiring
amendments to the Grant.
e. Comply with all changes to the Grant affecting in any way the services to be provided by
the Firm.
2. Structural (Rogers Moore Engineers, L.P.). Subconsultant for all structural engineering services.
3. Electrical (Jones Engineers, L.P.). Subconsultant for all electrical engineering services
4. Field Project Representative
a. Assist the Contractor's superintendent in understanding the intent of the contract
documents,
b. Conduct on -site observations of the work in progress as a basis for determining
conformance of work, materials, and equipment with the contract documents.
C. Consider and evaluate suggestions or recommendations which may be submitted by the
Contractor to the Firm or the City and report them with recommendations for the Firm's
and the City's final decision.
9
d. Be alert to the construction schedule and to conditions which may cause delay in
completion, and report same to the Finn and the City.
e. Maintain liaison with the Contractor and all Subcontractors on the project only through the
Contractor's superintendent.
Attend conferences held at the project site as directed by the Firm or the City. Report to
the Firm and the City the results of such meetings.
g. Advise the Firm and the City in advance of the schedules of tests and observe that tests
at the project site, which are required by the contract documents, are actually conducted.
Observe, record, and report to the Fimt and the City all details relative to the test
procedure.
h. If inspectors representing local, state, or federal agencies having jurisdiction over the
project visit the site, accompany such inspectors during their trips through the project.
Record and report to the Firm and the City the results of these inspections.
Receive samples, which are required, to be furnished at the site; record date received,
from whom, and notify the Firm and the City of their readiness for examination; record
Firm's approval or rejection; and maintain custody of approved samples.
j. Review applications for payment submitted by the Contractor and forward them with
recommendations to the Firm and the City for disposition.
k. After substantial completion, check each incomplete or defective item as it is corrected.
If a situation arises during construction which requires that work be rejected, report such
situation Immediately to the Firm and the City.
5. Miscellaneous Reimbursable Expenses. These expenses shall be limited to external
reproduction costs and external delivery expenses. In -house expenses, including, but not limited
to, reproduction, delivery costs, mileage, and travel, shall not be Included as miscellaneous
reimbursable expenses and shall be deemed already included within the scope of basic services
and will not be billed separately.
SUBCONTRACTS
1. No work under this Contract shall be subcontracted by Firm without prior approval. in writing, from
the City.
The Finn shall, prior to proceeding with the work, notify City in writing of the name of any
subcontractors proposed for the work. including the extent and character of the work to be done
by each.
3. If any time during progress of the work, the City determines that any subcontractor is incompetent
or undesirable, the City will notify the Firm who shall take reasonable and immediate steps to
satisfactorily cure the problem, substitute performance, or cancel such subcontract. Subletting by
subcontractors shall be subject to the same regulations. Nothing contained in this Contract shall
create any contractual relation between any subcontractor and City.
4. The Firm will include in all contracts and subcontracts of amounts in excess of $100,000 a
provision which requires compliance with all applicable standards. orders or requirements issued
under Section 306 of the Clean Air Act [42 U.S. 1857 (Section 508 of the Clean Water Act
(33 U.S.C. 1368d). Executive Order 11738, and Environmental Protection Agency regulations (40
10
CFR. Part 15), which prohibit the use under non - exempt Federal contracts, grants or loans of
facilities included on the EPA List of Violating Facilities. The provisions shall require reporting of
violations to TxCDBG and to the U.S. Environmental Protection Agency Assistant Administrator
for Enforcement.
5. The Firm will include in all contracts and subcontracts other than for small purchases (less than
$10,000), provisions or conditions which will allow for administrative, contractual or legal
remedies in instances which violate or breach contract terms, and provide for such sanctions and
penalties as may be appropriate.
6. The Finn will include in all contracts and subcontracts in excess of $10,000 suitable provisions for
termination by the City including the manner by which it will be affected and the basis for
settlement. In addition, such contracts shall describe conditions under which the contract may be
terminated for default as well as conditions where the contract may be terminated because of
circumstances beyond the control of the Firm.
7. The Firm will include in all contracts and subcontracts in excess of $10,000 provisions requiring
compliance with the following:
>a The Firm will not discriminate against any employee or applicant for employment
because of race. creed. sex, color, national origin, physical or mental disability, marital
status, parenthood, or age.
Executive Order 11246 -Equal Employment Opportunity.
D Copeland Anti - Kickback Act.
Davis -Bacon Act -prime contractor contracts in excess of $2,000.
➢ Section 103 and 107 of the Contract Work Hours and Safety Standards Act - contracts In
excess of $2,000.
A provision recognizing mandatory standards and policies relating to energy efficiency
that are contained in the State energy conservation plan issued in compliance with the
Energy Policy and Conservation Act.
D Section 3 of the Housing and Urban Development Act of 1969.
Title VI of the Civil Rights Act of 1964
8. The Firm will include in all negotiated contracts and subcontracts a provision which indicates that
funds will not be awarded under this contract to any party which is debarred, suspended, or
otherwise excluded from or ineligible for participation in federal assistance programs under
Executive Order 12549 and 24 CFR Part 24. A certification shall be provided and received from
each proposed subcontractor under this contract and its principals.
The Firm will include in all negotiated contracts and subcontracts a provision to the effect that the
City, TxCDBG, the Comptroller General of the State of Texas, or any of their duly authorized
representatives, shall have access to any books, documents, papers and records of the
Contractor which are directly pertinent to that specific contract, for the purpose of making audit,
examination, excerpts, and transcriptions.
10. The Firm will include in all contracts and subcontracts a requirement that the Contractor maintain
all relevant project records for three (3) years after the City has made final payment to the
Contractor and all other pending matters are dosed.
STANDARD OF PERFORMANCE AND DEFICIENCIES
1. All services of the Firm and its independent professional associates, consultants and
subcontractors will be performed in a professional, reasonable and prudent manner in
accordance with generally accepted professional practice. The Firm represents that it has the
required skills and capacity to perform work and services to be provided under this Contract.
2. The Finn represents that services provided under this Contract shall be performed within the
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limits prescribed by the City in a manner consistent with that level of care and skill ordinarily
exercised by other professional consultants under similar circumstances.
3. Any deficiency in Firm's work and services performed under this contract shall be subject to the
provisions of applicable state and federal law. The Firm 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. The Finn shall correct such deficiencies without additional
compensation. The City's approval, acceptance, use of or payment for all or any part of the FlmYs
services hereunder or of the work itself shall in no way after the Finn's obligations or the Citys
rights under this Contract. The City shall notify the Finn in writing of any deficiency and provide
an opportunity for mutual Investigation and resolution of the problem prior to pursuit of any judicial
remedy. In any case, this provislon shall in no way limit the judicial remedies available to the City
under applicable state or federal law.
4. By this Contract, 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 teens 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 City's sovereign immunity. The Firm
assumes full responsibility for Its work performed hereunder and hereby releases,
relinquishes and discharges City, its officers, agents, and employees from all claims,
demands, and causes of action of every kind and character for any Injury to or death of
any person and/or any loss of or damage to any property that Is caused by or alleged to be
caused by, arising out of, or in connection with the Firm's work to be performed
hereunder. This release shall apply with respect to the Firm's work regardless of whether
said claims, demands, and causes of action are covered In whole or in part by Insurance.
This release shall survive the termination and/or expiration of this Contract.
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PART III -• PAYMENT SCHEDULE
PROFESSIONAL ENGINEERINGIARCHITECTURAL SERVICES
City shall reimburse the Firm for basic engineering and architectural services provided upon completion of
the following project milestones per the following percentages of the maximum contract amount subject to
the limitations in Part I, Section 4:
Milestone
% of Contract
Fee
Contract
Fee
Approval of Preliminary Plans and Specifications by City
25%
$16,000
Approval of Plans and Specifications by Regulatory Agency(ies).
45%
$28,800
Completion of Bid Advertisement and Contract Award
15%
$9,600
Completion of shop and working drawing reviews.
5%
$3,200
Completion of Project Final Closeout Phase and submittal of As -built
documentation to the City
5%
$3,200
Completion of final inspection and acceptance by the City.
5%
$3,200
Total
100°%
$64,000
SPECIAL SERVICES
The fee for all Special Services shall not exceed a total of FIFTY -TWO THOUSAND AND N0 1100
DOLLARS ($52,000.00) subject to the limitations in Part I, Section 4. in accordance with the following:
1. The Firm shall be paid upon completion of Preliminary Evaluation of Project Scope the sum of
TWENTY -TWO THOUSAND NO /100 DOLLARS ($22,000.00).
2. The Firm shall be paid for Structural Services by Rogers Moore Engineers, L.L.C., based upon
completion of the following project milestones per percentages of the sum of EIGHT
THOUSAND AND NO/100 DOLLARS ($8,000.00).
3. The Firm shall be paid for Electrical Engineering Services by Jones Engineers, L.P., based upon
completion of the following project milestones per percentages of the sum of EIGHT
THOUSAND AND NO /100 DOLLARS ($8,000.00).
% of
Structural
Structural
Milestone
Engineering
Engineering
Services Fee
Services Fee
A Eproval of Preliminary Plans and Specifications by City
25%
$2,000
Approval of Plans and Specifications by Regulatory A en ies .
45%
$3,600
Completion of Bid Advertisement and Contract Award
15%
$1,200
Completion of shop and working drawing reviews.
5%
$400
Completion of Project Final Closeout Phase and submittal of As -built
documentation to the City
5%
$400
Completion of final inspection and acceptance by the City.
5%
$400
Total
100%
$8,000
3. The Firm shall be paid for Electrical Engineering Services by Jones Engineers, L.P., based upon
completion of the following project milestones per percentages of the sum of EIGHT
THOUSAND AND NO /100 DOLLARS ($8,000.00).
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% of
Structural
Structural
Milestone
Engineering
Engineering
Services Fee
Services Fee
Approval of Preliminary Plans and Specifications by Ci
25°%
$2,000
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4. The Firm shall be paid upon completion of Field Project Representative services the sum of
FOUR THOUSAND AND NO /100 DOLLARS ($4,000.00).
5. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable
expenses to the extent specified In the Scope of Special Services during the design phase
based on itemized billing statements from the Independent provider plus a 10 percent overhead
charge. All fees for miscellaneous reimbursable expenses during the design phase shall not
exceed SIX THOUSAND AND NO /100 DOLLARS ($6,000.00).
6. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable
expenses to the extent specified in the Scope of Special Services during the construction phase
based on itemized billing statements from the independent provider plus a 10 percent overhead
charge. All fees for miscellaneous reimbursable expenses during the construction phase shall
not exceed FOUR THOUSAND AND NO /100 DOLLARS ($4,000.00).
7. The payment requests shall be prepared by the Firm with work in progress to substantiate the
amounts requested.
8. Any work performed by the Firm prior to the execution of this contract is at the Firm's sole risk
and expense.
9. If the Firm, at any time during the term of this Contract, in curs a debt, as the word is defined in
section 2-622 of the Code of Ordinances of the City of Baytown, it shall immediately notify the
OWNER's Director of Finance in writing. If the OWNER'S Director of Finance becomes aware
that the Firm has incurred a debt, the City's Director of Finance shall immediately notify the Firm
in writing. If the Firm does not pay the debt within 30 days of either such notification, the City's
Director of Finance may deduct funds in an amount equal to the debt from any payments owed
to the Firm under this Contract, and the Firm waives any recourse therefor.
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% of
Structural
Milestone
Structural
Engineering
Engineering
Services Fee
Services Fee
Approval of Plans and Specifications by Re ulat en les .
45%
$3,600
Completion of Bid Advertisement and Contract Award
15%
$1,200
Completion of shop and working drawing reviews.
5%
$400
Completion of Project Final Closeout Phase and submittal of As -built
5%
$400
documentation to the City
Completion of final Inspection and acceptance by the City.
5%
$400
Total
l00%
$8,000
4. The Firm shall be paid upon completion of Field Project Representative services the sum of
FOUR THOUSAND AND NO /100 DOLLARS ($4,000.00).
5. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable
expenses to the extent specified In the Scope of Special Services during the design phase
based on itemized billing statements from the Independent provider plus a 10 percent overhead
charge. All fees for miscellaneous reimbursable expenses during the design phase shall not
exceed SIX THOUSAND AND NO /100 DOLLARS ($6,000.00).
6. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable
expenses to the extent specified in the Scope of Special Services during the construction phase
based on itemized billing statements from the independent provider plus a 10 percent overhead
charge. All fees for miscellaneous reimbursable expenses during the construction phase shall
not exceed FOUR THOUSAND AND NO /100 DOLLARS ($4,000.00).
7. The payment requests shall be prepared by the Firm with work in progress to substantiate the
amounts requested.
8. Any work performed by the Firm prior to the execution of this contract is at the Firm's sole risk
and expense.
9. If the Firm, at any time during the term of this Contract, in curs a debt, as the word is defined in
section 2-622 of the Code of Ordinances of the City of Baytown, it shall immediately notify the
OWNER's Director of Finance in writing. If the OWNER'S Director of Finance becomes aware
that the Firm has incurred a debt, the City's Director of Finance shall immediately notify the Firm
in writing. If the Firm does not pay the debt within 30 days of either such notification, the City's
Director of Finance may deduct funds in an amount equal to the debt from any payments owed
to the Firm under this Contract, and the Firm waives any recourse therefor.
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PART IV TERMS AND CONDITIONS
PROFESSIONAL MANAGEMENT, ENGINEERING AND /OR ARCHITECTURAL SERVICES
1. Termination of Contract for Cause. If, through any cause, the Firm shall fail to fulfill in a timely and
proper manner his /her obligations under this Contract, or if the Firm shall violate any of the
covenants, agreements, or stipulations of this Contract, the City shall thereupon have the right to
terminate this Contract by giving written notice to the Firm of such termination and specifying the
effective date thereof, at least five days before the effective date of such termination. In such
event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models,
photographs and reports prepared by the Firm under this Contract shall, at the option of the City,
become its property and the Firm shall be entitled to receive just and equitable compensation for
any work satisfactorily completed hereunder. However, no final payment will be made until all
work product referenced above and requested by the City Is tendered to the City.
Notwithstanding the above, the Firm shall not be relieved of liability to the City for damages
sustained by the City by virtue of any breach of the Contract by the Firm, and the City may
withhold any payments to the Firm for the purpose of set-off until such time as the exact amount
of damages due the City from the Firm is determined.
2. Termination for Convenience of the City. The City may terminate this Contract at any time by
giving at least ten (10) days notice in writing to the Firm. If the Contract is terminated by the City
as provided herein, the Firm will be paid for the time provided and expenses incurred up to the
termination date. If this Contract is terminated due to the fault of the Firm, Paragraph 1 hereof
relative to termination shall apply.
3. Changes. The City may, from time to time, request changes in the scope of the services of the
Firm to be performed hereunder. Such changes, including any increase or decrease in the
amount of the Firm's compensation, which are mutually agreed upon by and between the City
and the Firm, shall be incorporated in written amendments to this Contract.
4. Personnel.
a. The Firm represents that it has, or will secure at his own expense, all personnel required
in performing the services under this Contract. Such personnel shall not be employees of
or have any contractual relationship with the City.
b. All of the services required hereunder will be performed by the Firm or under its
supervision and all personnel engaged in the work shall be fully qualified and shall be
authorized or permitted under State and local law to perform such services.
C. None of the work or services covered by this Contract shall be subcontracted without the
prior written approval of the City. Any work or services subcontracted hereunder shall be
specified by written contract or agreement and shall be subject to each provision of this
Contract.
5. Assignability. The Firm shall not assign any interest on this Contract, and shall not transfer any
Interest in the same (whether by assignment or novation), without the prior written consent of the
City thereto; provided, however, that claims for money by the Firm from the City under this
Contract may be assigned to a bank, trust company, or other financial institution without such
approval. Written notice of any such assignment or transfer shall be furnished promptly to the
City. The Firm may not sell or assign all or part interest in this Contract to another party or parties
without the prior express written approval of the City Manager of such sale or assignment. For
any other 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.
15
6. Reports and Information. The Firm, at such times and in such forms as the City may require, shall
fumish the City such periodic reports as it may request pertaining to the work or services
undertaken pursuant to this Contract, the costs and obligations incurred or to be Incurred in
connection therewith, and any other matters covered by this Contract.
7. Records and Audits. The Firm shall insure that the City maintains fiscal records and supporting
documentation for all expenditures of funds made under this contract in a manner that conforms
to OMS Circular A -87, Section 570.490 of the Regulations. and this Contract. Such records must
include data on the racial, ethnic, and gender characteristics of persons who are applicants for,
participants in, or beneficiaries of the funds provided under this Contract. City shall retain such
records, and any supporting documentation. for the greater of three years from closeout of the
Contract or the period required by other applicable laws and regulations.
8. Findinns Confidential. All of the reports, information, data, etc., prepared or assembled by the
Firm under this contract are confidential and the Firm agrees that they shall not be made
available to any individual or organization without the prior written approval of the City.
9. Coovriaht. No report, maps, or other documents produced in whole or in part under this Contract
shall be the subject of an application for copyright by or on behalf of the Firm.
10. Compliance with Local laws. The Firm shall comply with all applicable laws, ordinances and
codes of the State and local governments, and the Firm shall save the City harmless with respect
to any damages arising from any tort done in performing any of the work embraced by this
Contract.
11. Equal Employment Opportunity. During the performance of this Contract, the Firm agrees as
follows:
a. The Firm will not discriminate against any employee or applicant for employment
because of race, creed, sex, color, handicap or national origin. The Firm will take
affirmative action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, creed, sex, color, handicap or national
origin. Such action shall Include, but not be limited to, the following: Employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Firm agrees to post in conspicuous places. available to
employees and applicants for employment, notices to be provided by the City setting forth
the provisions of this non - discrimination clause.
b. The Firm will, in all solicitation or advertisements for employees placed by or on behalf of
the Firm, state that all qualified applicants will receive consideration for employment
without regard to race, creed, color, sex, handicap or national original.
C. The Firm will cause the foregoing provisions to be Inserted in all subcontracts for any
work covered by this Contract so that such provisions will be binding upon each
subcontractor, provided that the foregoing provisions shall not apply to contracts or
subcontracts for standard commercial supplies or raw materials.
d. The Firm will include the provisions a. through c. in every subcontract or purchase order
unless exempted.
12. Civil Rights Act of 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the
grounds of race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance.
16
13. Section 109 of the Housino and Community Development Act of 1974. No person in the United
States shall on the ground of race, color, national origin, or sex be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity funded
in whole or In part with funds made available under this title.
14. "Section 3° Comollance in the Provision of Trainino. Employment and Business Opoortunitles.
a. The work to be performed under this contract is on a project assisted under a program
providing direct Federal financial assistance from the Office of Housing and Urban
Development and is subject to the requirements of Section 3 of the Housing and Urban
Development Act of 1968, as amended, 12 U.S.C. 1701u. Section 3 requires that to the
greatest extent feasible opportunities for training and employment be given lower income
residents of the project area and contracts for work in connection with the project be
awarded to business concerns that are located in, or owned in substantial part by
persons residing In the area of the projecL
b. The parties to this contract will comply with the provisions of said Section 3 and the
regulations issued pursuant thereto by the Secretary of Housing and Urban Development
set forth n 24 C.F.R. 235, and all applicable rules and orders of TxCDBG issued
thereunder prior to the execution of this Contract. The parties to this Contract certify and
agree that they are under no contractual or other disability that would prevent them from
complying with these requirements.
C. The Firm will include this Section 3 clause in every subcontract for work in connection
with the project and will, at the direction of the applicant for or recipient of Federal
financial assistance, take appropriate action pursuant to the subcontract upon a finding
that the subcontractor is in violation of regulations issued by the Secretary of Housing
and Urban Development, 24 C.F.R. Part 135. The Firm will not subcontract with any
subcontractor where it has notice or knowledge that the latter has been found in violation
of regulations under 24 C.F.R. Part 135 and will not let any subcontract unless the
subcontractor has first provided it with a preliminary statement of ability to comply with
the requirements of these regulations.
15. Section 503 Handicapped (if $2.500 or Over) Affirmative Action for Handicapped Workers
a. The Firm will not discriminate against any employee or applicant for employment
because of physical or mental handicap in regard to any position for which the employee
or applicant for employment is qualified. The Firm agrees to take affirmative action to
employ, advance in employment and otherwise treat qualified handicapped individuals
without discrimination based upon their physical or mental handicap in all employment
practices such as the following: Employment, upgrading, demotion or transfer,
recruitment, advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship.
b. The Firm agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor issued pursuant to the Act.
C. In the event of the Firm's non - compliance with the requirements of this clause, actions for
non - compliance may be taken in accordance with the rules, regulations, and relevant
orders of the Secretary of Labor issued pursuant to the Act.
d. The Firm will include the provisions of this clause in every subcontract or purchase order
of $2,500 or more unless exempted by rules, regulations, or orders of the Secretary
issued pursuant to Section 503 of the Act, so that such provisions will be binding upon
each subcontractor with respect to any subcontract or purchase order as the Director of
17
the Office of Federal Contract Compliance Programs may direct to enforce such
provisions, Including action for non - compliance.
16. Interest of Members of a City. No member of the governing body of the City and no other officer,
employee, or agent of the City, who exercises any functions or responsibilities in connection with
the planning and carving out of the program, shall have any personal financial interest, direct or
Indirect, in this Contract. And the Firm shall take appropriate steps to assure compliance.
17. Interest of Other local Public Officials. No member of the governing body of the City and no other
public official of such City, who exercises any functions or responsibilities in connection with the
planning and carrying out of the program, shall have any personal financial interest, direct or
indrect, in this Contract; and the Firm shall take appropriate steps to assure compliance.
18. Interest of Firm and Employees. The Finn covenants that he/she presently has no interest and
shall not acquire interest, director indirect, in the study area or any parcels therein or any other
interest which would conflict in any manner or degree with the performance of his/her services
hereunder. The Firm further covenants that in the performance of this Contract, no person having
any such Interest shall be employed.
18
PART V
PROJECT TIME SCHEDULE
PROFESSIONAL ENGINEERINGIARCHITECTURAL SERVICES
Comaletion
Date
Preliminary Engineering Report 09- Dec -10
City Review
16- Dec -10
Design & Drafting
16- Jan -10
Preliminary Plan & Spec Reviews
25- Jan -10
Revisions & Drafting
23- Feb -11
Final Plan & Spec Reviews
09- Mar -11
Advertise & Bid
30- Mar -11
Award & Prepare Contracts
20- Apr -11
Construction
14- Feb -12
Inspections & Record Drawings
06- Mar -12
The failure of the Firm to comply with the above - referenced schedule, for any reason including,
circumstances beyond its control, shall not be a basis for additional compensation. The Firm expressly
understands and agrees that the monies set forth in Part I, Section 4 of this Contract are the only funds
which have been authorized for payment in full for the services required herein and that the Firm shall
perform all services required under this Contract necessary for final completion and acceptance by the
City Council of the project.
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