Ordinance No. 14,610ORDINANCE NO. 14,610
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A CONSULTING SERVICES AGREEMENT WITH KIMLEY-
HORN AND ASSOCIATES, INC., FOR THE ROBERT E. LEE HIGH
SCHOOL DRAINAGE RE-ROUTE PROJECT CONTINGENT UPON RECEIPT OF
FUNDING FROM THE HARRIS COUNTY FLOOD CONTROL DISTRICT AND
THE GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED TWO HUNDRED ELEVEN THOUSAND AND NO:'100 DOLLARS
($211,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That contingent upon the receipt of funding from Harris County Flood Control
District and the Goose Creek Consolidated Independent School District in the amount specified in Section
2, 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 Consulting Services Agreement with Kimley-Horn and
Associates, Inc., for the Robert E. Lee High School Drainage Re -Route Project. A copy of said
agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Kimley-
Horn and Associates, Inc., in an amount not to exceed TWO HUNDRED ELEVEN THOUSAND AND
NOI100 DOLLARS ($211,000.00) for professional engineering services in accordance with the
agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO,100 DOLLARS ($50,000.00) 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 Cif 1 Council of the City of
Baytown this the 10" day of December, 2020.
ON CAPETILLO, 14ayor
ATT53T:
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LETICIA BRYSCH CitY rk �'' "�
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APPROVED AS TO FORM:at�
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K N L. HORNER, City Attorney
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EXHIBIT
AGREEMENT FOR CONSULTING SERVICES
STATE OF TEXAS
COUNTY OF HAPRIS
This Agreement (this "Agreement") entered into by and between Kimley-Horn and Associates,
Inc. (hereinafter "Consultant") and the City of Baytown, a home -rule municipality located in
Harris and Chambers Counties, Texas (the "City").
1. Scope of Services/Consultant Fees
This Agreement authorizes Consultant to perform design, survey and geotechnical engineering,
and construction phase services for Robert E. Lee High School Drainage Re -Route Project (the
"Work") for and on behalf of the City. The scope of the Work is detailed in Exhibit "A." The
compensation and professional fees for Consultant and its subconsultants is more particularly
described in Exhibit "B" and shall not exceed TWO HUNDRED ELEVEN THOUSAND AND
NO 100 DOLLARS ($211,000.00). The time schedules for the Work are specified in Exhibit
"C." Each of these Exhibits "A" through "C" are incorporated into this Agreement by reference
for all purposes.
2. Compensation and Professional Fees
The City shall pay Consultant in installments based upon monthly progress
reports and detailed invoices submitted by the Consultant based upon the
following:
1. Design Phase Services (Lump Sum)................................................$149,800.00
2. Bid Phase Services (Hourly Not to Exceed)......................................$13,300.00
3. Construction Phase Services (Hourly Not to Exceed).......................$37,900.00
4. Additional Services (Ilourly Not to Exceed)....................................$10,000.00
(These services require independent and specific advance, written authorization)
5. Reimbursable Expenses (Not to Exceed)....................................................$0.00
6. Total................................................................................................$211,000.00
b. For an agreed contract amount identified as "Lump Sum," "Not to Exceed" and
"Reimbursable," Consultant shall not exceed the fixed contractual amount without
written authorization in the form of a Contract amendment.
C. Reimbursable Expenses, as shown in Exhibit "B" are itemized by work category.
Reimbursable Expenses shall be invoiced AT COST, without subsequent markup
by Consultant. All invoices containing a request for Reimbursable Expenses shall
include copies of the original expense receipts itemized per allowable category.
(1) Allowable reimbursable Expenses include:
(a) Hard copy reproductions, copies, and/or binding costs;
(b) Postage;
Agreement for Consulting Services, Page 1
EXHIBIT A
(c) Mileage, for travel from Consultant's local office (within a 25-mile
radius) to meetings the City or job -site. Mileage shall be charged
at the current IRS rates;
(d) Travel Expenses, mileage from local office to State or federal
regulatory agency office beyond 100miles; and
(e) Lodging expenses for destinations beyond 100 miles from
Consultant's local office AND when business hours exceed eight
hours within one business day OR when Consultant's services
require more than one eight -hour day at the destination; provided
such expenses has been approved in writing by the City.
(2) Disallowed Expenses include travel expenses for professional expertise
traveling into the Greater Houston Area from Consultant's office outside
the Greater Houston Area.
d. Consultant shall invoice based upon total services actually completed during the
applicable month. Invoices and all required or requested backup information shall
be tendered no more often than once a month. Consultant shall not invoice the
City for services or expenses that were incurred more than sixty (60) days before
the date of the invoice. Failure to timely invoice the City for services or expenses
shall result in Consultant's invoice being denied.
In the event of a disputed or contested invoice, the City may withhold from
payment that portion so disputed or contested, and the undisputed portion will be
paid.
Personnel of Consultant
a. Consultant's Project Manager
Consultant shall designate Lance McLeod, P.E., 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 Architects"Engineers
Consultant shall keep a full-time registered architects and/or engineers 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 Consultant's Employees
Prior to commencement of the Work, Consultant shall forward to the City a
detailed resume of the personnel that will be assigned to the Work. Such
personnel shall include, but not be limited to, architects and"or engineers as
applicable.
Agreement for Professional Services, Page 2
EXHIBIT A
d. Rejection of Consultant's Employees
The City reserves the right to approve or reject from the Work any employees of
Consultant.
Designation and Duties of the City's Representative
The City's Director of Public Works and Engineering or his designee shall act as
the City's Representative.
b. The City's Representative shall use his best efforts to provide nonconfidential City
records for Consultant's usage on the Work and to provide access to City's
property and easements. However, the City does not guarantee the accuracy or
correctness of the documents so provided. Notwithstanding the foregoing,
Professional shall be entitled to use and rely upon information provided by the
City in performing the services required under this Agreement only to the extent
and level specified by the City in writing for each document provided. Nothing
contained herein 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.
5. Standards of Performance
Consultant shall perform all services under this Agreement with the care and skill
ordinarily used by members of Consultant's profession practicing under the same
or similar circumstances, time and locality. Opinion of probable cost shall be
based upon the consultant's experience and represent its best judgement as an
experienced and qualified professional. Each submittal of opinion of probable
cost shall be commensurate with the project design.
Consultant 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. Consultant shall correct such deficiencies without additional
compensation.
b. Codes and Standards
(1) All references to codes, standards, environmental regulations and/or
material specifications shall be to the latest revision, including all effective
supplements or addenda thereto, as of the date that the order for any
necessary equipment is made by the City or that the construction specified
is bid by the City.
(2) If any such equipment is specially manufactured, it shall be identified to
the City, and the Contractor and the Seller shall present sufficient data to
the City to support the design and the suitability of the equipment.
Agreement for Professional Services, Page 3
WIMMUIVA
(3) All materials specified on any City project shall be in accordance with
City, ASTM, ACI, and AASHTO specifications, and 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 and shall
comply Texas Department of Licensing and Regulation's rules and
regulations, including the Texas Accessibility Standards.
(5) The codes and standards used in the profession set forth minimum
requirements. These may be exceeded by the Contractor or Consultant if
superior methods are available for successful operation of equipment
and/or for the construction project on which the Work is performed. Any
alternative codes or regulations used shall have requirements that are
equivalent or better than those in the above listed codes and regulations.
Consultant shall state the alternative codes and regulations used.
(6) Consultant agrees the services it provides as an experienced and qualified
architect/engineer will reflect the professional standards, procedures and
performances common in the industry for this project. Consultant 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) Consultant shall promptly correct any defective analysis caused by
Consultant at no cost to City. The City's approval, acceptance, use of or
payment for all or any part of Consultant's services hereunder or of the
Work itself shall in no way alter Consultant's obligations or the City's
rights under this Agreement. As applicable, Consultant shall provide the
City with record "as -built" drawings relating to the Work, in an electronic
format that is acceptable to the City. City shall be in receipt of record
drawings, if applicable, prior to final payment.
(8) Consultant has no control over the cost of labor, materials, equipment or
services furnished by others, other than its subconsultants. Data
projections and estimates are based upon Consultant's opinion based on
experience and judgment. Consultant cannot and does not guarantee that
actual costs and/or quantities realized will vary from the data projections
and estimates prepared by Consultant.
Agreement for Professional Services, Page 4
EXHIBIT A
(9) Consultant shall submit all final construction documents in both hard copy
and electronic format. Plans shall be AutoCAD compatible and all other
documents shall be Microsoft Office compatible. The software versions
used shall be compatible to current City standards. Other support
documents for example structural calculations, drainage reports and
geotechnical reports, shall be submitted in hard copy only. All Record
Drawings electronic files shall be submitted to the City in PDFITIF format.
6. Schedule
Consultant shall not proceed with the Work or any stage thereof until written notice to proceed is
provided by the City's Representative. Consultant's obligation to render services specified in
Exhibit B will be for the entire period necessary for the final completion of the construction of
the Work. If the Consultant contributes to any delay in the schedule, Consultant will have no
right to seek and shall not be entitled to any additional compensation.
7. Instruments of Service
Upon execution of this Agreement, Consultant grants to the City an ownership interest in the
Instruments of Service. Consultant shall obtain similar interests from the City and Consultant's
consultants consistent with this Agreement. As noted in Articles 5 & 11, Consultant shall be
required to tender to City all Instruments of Service. With such ownership interest, it is expressly
understood by the parties hereto that the City may use the Instruments of Service for any purposes
which the City sees fit, including, but not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the City's use of the Instruments of
Service, the City hereby expressly agrees to remove Consultant's name and all references to
Consultant and its consultants from the Documents. Provided that this Agreement is not
terminated for cause by the City, the City shall release any and all claims which the City could
make arising out of or in connection with any reuse of the documents by the City.
8. Insurance
Consultant shall procure and maintain at its sole cost and expense for the duration of the
Agreement, insurance against claims for injuries to person or damages to property which may
arise from or in connection with the performance of the Work hereunder by Consultant, its
agents, representatives, volunteers, employees or subconsultants.
a. Consultant'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 Consultant's insurance and shall not contribute to it. Further, Consultant
shall include all subconsultants, agents and assigns as additional insureds under its
policy or shall furnish separate certificates and endorsements for each such person
or entity. All coverages for subconsultants and assigns shall be subject to all of
the requirements stated herein.
The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
Agreement for Professional Services. Page 5
EXHIBIT
Commercial General Liability
■ General Aggregate: $2,000,000
■ Products & Completed Operations Aggregate: $2,000,000
■ Personal & Advertising Injury: $1,000,000
■ Per Occurrence: $1,000,000
■ Fire Damage $500,000
■ Waiver of Subrogation required.
■ Coverage shall be broad form.
■ No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
2. Business Automobile Policy
■ Combined Single Limits: $1,000,000
■ Coverage for "Any Auto"
■ Waiver of Subrogation required.
Errors and Omissions
■ Limit: $1,000,000 for this project.
■ For all architects, engineers, and/or design companies
■ Claims -made form is acceptable
■ Coverage will be in force for one (1) year after completion of the
Project.
■ Waiver of Subrogation required.
4. Workers' Compensation
■ Statutory Limits
■ Employer's Liability $500,000
■ Waiver of Subrogation required.
b. The following shall be applicable to all policies of insurance required herein.
1. Insurance carrier for all liability policies must have an A.M. Best Rating
of A:VIII or better.
2. Only insurance carriers licensed and admitted to do business in the State
of Texas will be accepted.
Liability policies must be on occurrence form. Errors and Omissions can
be on claims -made form.
4. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except
after thirty (30) days' prior written notice by mail, return receipt
requested, has been given to the City.
Agreement for Professional Services, Page 6
I0AN:I1:3:r_1
5. The City, its officers, agents and employees are to be added as Additional
Insureds to all liability policies, with the exception of the Workers
Compensation and Errors and Omissions Policies required herein.
6. Upon request and without cost to the City, certified copies of all insurance
policies and/or certificates of insurance shall be furnished to the City.
7. Upon request and without cost to the City, loss runs (claims listing) of any
and/or all insurance coverages shall be furnished to the City.
8. All insurance required herein shall be secured and maintained in a
company or companies satisfactory to the City, and shall be carried in the
name of Consultant. Consultant shall provide copies of insurance policies
and endorsements required hereunder to the City on or before the
effective date of this Agreement.
9. Indemnification and Release
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO AS
THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY HIND, 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
PROFESSIONAL OR THE CONSULTANT'S 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 CONSULTANT'S PARTIES'
OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE
AS WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL
Aereement for Professional Services, Page 7
EXHIBIT A
TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND
FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT. 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
AGREEMENT.
By this Agreement, the City does not consent to litigation or suit, and the City
hereby expressly revokes any consent to litigation that it may have granted by the
terms of this Contract or any other contract or agreement, any charter, or
applicable state law. Nothing herein shall be construed so as to limit or waive the
City's sovereign immunity. Consultant assumes full responsibility for its services
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
Consultant's services to be performed hereunder. This release shall apply with
respect to Consultant's services regardless of whether said claims, demands, and
causes of action are covered in whole or in part by insurance.
10. Subcontractors and Subconsultants
Consultant shall receive written approval of the City's Representative prior to the use of any
subcontractors or subconsultants. A copy of all proposed contracts with subconsultants and/or
subcontractors shall be given to the City before execution of such contracts.
11. Termination of Consultant
The City, besides all other rights or remedies it may have, shall have the right to terminate this
Agreement without cause upon written notice from the City Manager to Consultant of the City's
election to do so. Furthermore, the City may immediately and without notice terminate this
Agreement if Consultant breaches this Agreement. A breach of this Agreement shall include, but
not be limited to, the following:
Agreement for Professional Services Page 8
EXHIBIT
(a) failing to pay insurance premiums, liens, claims or other charges;
(b) failing to pay any payments due the city, state, or federal government from
Consultant or its principals, including, but not limited to, any taxes, fees,
assessments, liens, or any payments identified in this Agreement;
(c) the institution of voluntary or involuntary bankruptcy proceeding against
Consultant;
(d) the dissolution of Consultant;
(e) refusing or failing to prosecute the Work or any separable part, with the
diligence that will ensure its completion within the time specified in this
Agreement;
(f) failing to complete Work within the time period specified in this
Agreement; and/or
(g) the violation of any provision of this Agreement.
Upon delivery of any notice of termination required herein, Consultant shall discontinue all
services in connection with the performance of the Agreement. Within ten (10) days after receipt
of the notice of termination, Consultant shall submit a final statement showing in detail the
services satisfactorily performed and accepted and all other appropriate documentation required
herein for payment of services. At the same time that the final statement is tendered to the City,
Consultant shall also tender to the City's Representative all of Consultant's instruments of
service, including all drawings, special provisions, field survey notes, reports, estimates, and any
and all other documents or work project generated by Consultant under this Agreement, whether
complete or not, in an acceptable form and format together with all unused materials supplied by
the City. No final payment will be made until all such instruments of service and materials
supplied are so tendered.
If this Agreement is terminated for cause, Consultant shall be liable for any damage to the City
resulting therefrom. This liability includes any increased costs incurred by the City in
completing Consultant's services. The rights and remedies of the City in this section are in
addition to any other rights and remedies provided by law or under this Agreement.
12. Records
Within ten days of the City's request and at no cost to the City, the City will be entitled to review
and receive a copy of all documents that indicate work on the Project that is subject to this
Agreement.
13. Supervision of Consultant
Consultant is an independent contractor and the City neither reserves nor possesses any right to
control the details of the Work performed by Consultant under the terms of this Agreement.
14. Billing
The City shall have thirty (30) days to pay Consultant's invoices from the date of receipt of such
invoices and necessary backup information. All invoices 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. Consultant shall invoice the City for work
Agreement for Professional Services, Page 9
I:*:/:IIc3I1_1
performed no more than once a month and may not invoice the City for work not performed.
Invoices shall be received by the City no later than sixty calendar (60) days from the date
Consultant and/or its subconsultants perform the services or incur the expense. Failure by
Consultant to comply with this requirement shall result in Consultant's invoice being denied and
the City being relieved from any liability for payment of the late invoice.
15. Indebtedness.
If Consultant, at any time during the term of this Agreement, incurs a debt, as the word is defined
in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify
the City's Director of Finance in writing. If the City's Director of Finance becomes aware that
Consultant has incurred a debt, the City's Director of Finance shall immediately notify
Consultant in writing. If Consultant 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 Consultant under this Agreement, and Consultant waives any
recourse therefor.
16. No Boycott Israel.
Consultant agrees that it will not boycott Israel during the term of this Agreement. As used in
this section, "boycott Israel" means refusing to deal with, terminating business activities with, or
otherwise taking any action that is intended to penalize, inflict economic harm on, or limit
commercial relations specifically with Israel, or with a person or entity doing business in Israel
or in an Israeli -controlled territory, but does not include an action made for ordinary business
purposes.
17. Reputation in the Community
Consultant shall retain a high reputation in the community for providing professional
architectural/engineering services. Consultant shall forward a copy of any current petition or
complaint in any court of law which (a) asserts a claim for $50,000 or more for errors or
omissions in providing architectural/engineering services and/or (b) seeks to deny Consultant the
right to practice architecture/engineering or to perform any other services in the state of Texas.
18. Payroll and Basic Records
a. Consultant shall maintain payrolls and basic payroll records during the course of
the work performed under this Agreement and shall preserve them for a period of
three years from the completion of the work called for under this Agreement for
all personnel working on such work. Such records shall contain the name and
address of each such employee, social security number, correct classification,
hourly rates of wages paid, daily and weekly number of hours worked, deductions
made and actual wages paid.
b. Consultant shall make the records required to be maintained under the preceding
subsection (a) of this section available at no cost to the City for inspection,
copying or transcription or its authorized representatives within fifteen days of the
City's request therefor. Consultant shall permit such representatives to interview
Consultant's employees during working hours on the job.
Agreement for Professional Services, Page 10
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19. Governing Law
This Agreement has been made under and shall be governed by the laws of the state of Texas.
The parties further agree that performance and all matters related thereto shall be in Harris
County, Texas.
20. Notices
Unless otherwise provided in this Agreement, any notice provided for or permitted to be given
must be in writing and delivered in person or by depositing same in the 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
Agreement, from and after the expiration of three (3) days after it is so deposited.
For the purpose of notice, the addresses of the parties shall be as follows unless properly changed
as provided for herein below:
For the City:
For Consultant:
CITY OF BAYTOWN
Attn: City Manager
P. O. Box 424
Baytown, Texas 77522-0424
Kimley-Horn and Associates, Inc.
Attn: Lance McLeod, P.E.
11700 Katy Freeway, Ste. 800
Houston, Texas 77079
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.
21. No Third -Party Beneficiary
This Agreement shall not bestow any rights upon any third party, but rather, shall bind and
benefit Consultant and the City only. No person or entity not a signatory to this Agreement shall
be entitled to rely on Professional's performance of its services hereunder, and no right to assert a
claim against Professional by assignment of indemnity rights or otherwise shall accrue to a third
party as a result of this Agreement or the performance of Professional's services hereunder.
22. No Right to Arbitration
Notwithstanding anything to the contrary contained in this Agreement, the City and Consultant
hereby agree that no claim or dispute between the City and Consultant arising out of or relating
to this Agreement shall be decided by any arbitration proceeding including, without limitation,
any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable
Agreement for Professional Services, Page 11
EXHIBIT A
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, Consultant consents to be joined in the arbitration proceeding if Consultant's
presence is required or requested by the City of complete relief to be recorded in the arbitration
proceeding.
23. Waiver
No waiver by either party to this Agreement of any term or condition of this Agreement shall be
deemed or construed to be a waiver of any other term or condition or subsequent waiver of the
same term or condition.
24. Complete Agreement
This Agreement represents the entire and integrated agreement between the City and Consultant
in regard to the subject matter hereof and supersedes all prior negotiations, representations or
agreements, either whether written or oral, on the subject matter hereof. This Agreement may
only be amended by written instrument approved and executed by both of the parties. The City
and Consultant accept and agree to these terms.
25. No Assignment
Consultant may not sell or assign all or part interest in this Agreement to another party or parties
without the prior express written approval of the City Manager of such sale or assignment. The
City may require any records or financial statements necessary in its opinion to ensure such sale
or assignment will be in the best interest of the City.
26. Headings
The headings used in this Agreement are for general reference only and do not have special
significance.
27. 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.
28. Ambiguities
In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for
or against any party hereto on the basis that such party did or did not author the same.
29. Authority
The officers executing this Agreement on behalf of the parties hereby represent that such officers
have full authority to execute this Agreement and to bind the party he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the same Agreement on the day of , 2020, the date of execution by the City
Manager of the City of Baytown.
Agreement for Professional Services, Page 12
IW:IIQkr_I
CITY OF BAYTOWN
RICHARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
KAREN L. HORNER, City Attorney
CONSULTANT:
Kimley-Horn and Associates, Inc.
(Company Name)
(Signature)
Brandon Guillory
(Printed Name)
SVP
(Title)
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared , in his:'her
capacity as of , Kimley-Horn and Associates, Inc. , on behalf
of such corporation/ other,
❑ known to me;
❑ proved to me on the oath of ; or
❑ proved to me through his/her current
{description of identification card or other document issued by the federal
Agreement for Professional Services, Page 13
1ON:11:3kr_1
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 20_
Notary Public in and for the State of Texas
COMOI Legal Karen Files Engineering\Engineering Agreements Forms 2020\Agreement.
Aereement for Professional Services, Page 14
EXHIBIT
EXHIBIT "A"
SCOPE OF WORK
PROJECT BACKGROUND
This proposal is based on the Consultant's understanding of the City's request to prepare final drainage
engineering for the construction of a re -alignment of drainage facilities around Robert E. Lee High School.
The existing drainage facility designated as HCFCD Unit No. 0101-01-00 has experienced a collapse of
the storm sewer pipe on Goose Creek Consolidated Independent School District (GCCISD) property at
the high school, near the baseball field. The collapse created a sink hole on school grounds and is a
disruption to stormwater flows coming from the east through that system.
To resolve the issue and limit further damage, 0101-01-00 and HCFCD Unit No. 0101-01-01 upstream
(south) of the school site are proposed to be rerouted to a new drainage system running south and east
of the GCCISD property. The existing 0101-01-00 system on GCCISD property shall be abandoned in
place by plugging both ends on the school property and sealing it with flowable fill in an effort to prevent
further future collapses. The existing 0101-01-01 system onsite shall continue to drain the school
property, but will no longer receive stormwater flows from offsite areas south of the Southern Pacific
Railroad. This will be accomplished by installing a plug at the upstream end of the storm sewer on the
south end of the school property and rerouting those southern offsite flows eastward via the new drainage
system.
The proposed drainage system shall consist of approximately 1,200 linear feet of underground storm
sewer and 700 linear feet of open channel facilities that border Gentry Street and Lee Drive, respectively.
These facilities have been previously routed and sized with an analysis performed by Freese & Nichols,
Inc. and documented in their report entitled Goose Creek Tributary Realignment Study (March 2,
2020), and their subsequent Addendum to Goose Creek Tributary Realignment Study (updated July
20, 2020). The improvements they proposed continue downstream with an increase in the capacity of the
outfall channel through Bicentennial Park north of the GCCISD property, terminating just short of its
outfall confluence with HCFCD Unit no. 0101-00-00.
Therefore, the scope of services described below represent the effort required to create the necessary
design documents for construction of these previously routed and sized drainage facilities in support of
the re -alignment of 0-101-01-00 and 0101-01-01 to re-establish stormwater flow. The resultant
construction contract shall also include the abandonment in place (plug and fill) of the existing 0101-01-
00 within the GCCISD property and the plugging of the existing onsite 0101-01-01 storm sewer on the
school property on the north side of Gentry Street.
SCOPE OF WORK
Kimley-Horn will provide the following scope of work:
Task 1 — Meetings, Coordination and Data Collection
A. Project Kickoff Meeting. Upon notice to proceed, Consultant will conduct a project kickoff meeting
with the City.
B. Monthly Coordination Meetings. The Consultant anticipates virtually meeting with the Project Team
monthly (approximately eleven (11) meetings) to coordinate needed information for the final design.
In addition to the identified virtual meetings, the Consultant will coordinate with the Project Team,
100:n=1"".1
GCCISD, and HCFCD (at the City's discretion) to review available information and coordinate for
the project throughout its duration.
C. Data Collection. The Consultant will collect the following data from the City for the Project Area
shown in attached Map 1 and review for use in the efforts of Task 2:
• City Record Drawings
• GIS shape files
• Available LIDAR
• Available survey data
• Available geotechnical information data
• FEMA Floodplain Maps
D. Site Visits. The Consultant will conduct site visits to understand the physical aspects of the drainage
alignment corridors, verify survey data, observe constructability field restraints, and photo document
the alignments
E. City of Baytown Parks & Recreation Department Coordination. The Consultant will coordinate with
the City Parks & Recreation department to ensure their understanding and buy -in to the proposed
design through the Bicentennial Park area. Coordination with the department will occur, at a
minimum at the 60%, 90%, and 100% design stages.
F. Agency/Entity Coordination. The Consultant will identify and coordinate with local agencies/entities
who may have permitting, regulatory, and/or similar approval authority for the project, including but
not limited to GCCISD, HCFCD, USACE, any utilities, and pipeline companies. The Consultant will
provide documentation of coordination including entities contacted, dates contacted, items
discussed, and responses. The Consultant will further coordinate with any utilities having potential
conflicts with the proposed drainage facilities (as identified in Task 4.C.) and document any
discussions/agreements for resolution.
G. Staging Areas. The Consultant will identify potential staging areas and impact to surrounding
areas.
H. Easements. The Consultant will identify permanent and temporary easements required for
construction. The Consultant will coordinate locations with the City for review and approval. Tasks
associated with easement acquisition are the sole responsibility of the City to conduct. The
Consultant will only be providing metes and bounds descriptions and exhibits for the City's use in
those activities (Task 3.13).
Task 2 — Final Design
A. Contract Documents. The Consultant will prepare and provide 60%, 90% and 100% (final) plans,
specifications, and an opinion of probable construction costs. These documents shall conform to
the City design standards and criteria. The Consultant will address all review comments from prior
design submittals and return prior review comments when making the next required design
submittals. It is anticipated that the traditional low bid delivery methodology will be utilized to
procure construction contractor services. The Consultant will modify City standard front end bid
documents (Division 00) with specific project information as required and include the bid form
(format provided by the City) when preparing specifications. The Consultant shall be responsible for
developing the applicable technical specifications in conformance with City standards. It is
EXHIBIT A
anticipated that this design will be included in one (1) procurement package such that only one set
of contract documents will be prepared.
For the interim submittals of the contract documents, the Consultant will prepare and submit
electronically (.pdf) full size (22"x34") plans and specifications for the 60%, 90%, and 100% (Final)
Milestone Submittals for City review and approval. At the 60% submittal, the Consultant will
provide the full project manual with any necessary special specifications. At 90%, the project
manual will include the project specific information for Division 00 documents, 00100 01100, and
0811. After each milestone submittal, the City will consolidate its submittal review comments via a
comment matrix and provide to the Consultant within fourteen (14) calendar days of receipt of the
design submittal. The Consultant shall attend a comment review workshop with the City to review
these comments. The Consultant shall respond to and complete a comment matrix by providing
responses/answer to each item in the matrix and documenting that they were addressed. Contract
documents including plans, details, and specifications for the drainage facility segments shall, at a
minimum, include the following:
• General sheets including cover page, general notes, and overall sheet.
• Sheet layout and boring plan.
• Abandonment plan for existing infrastructure to be replaced (relocated).
• Plan/Profile sheets showing horizontal and vertical alignment including pipe size, material,
slope (horizontal and vertical as necessary), and elevation of proposed drainage facilities.
Locations of manholes, junction boxes, headwalls, and connection to existing drainage
facilities will also be included, along with the hydraulic grade lines (HGLs) and 100-year (1%)
water surface elevation (WSEL).
• Erosion Control Plan (not including SWPPP).
• Construction Phasing Plan.
• Traffic Control Plan.
• Storm Water Pollution Prevention Plan.
• Construction details.
• Finalized Design Calculations (loading calculations, etc.).
• Project Manual.
• Provide Appendix in Project Manual with table to identify categories, classes and properties
of new assets added to the City drainage network which will be utilized to update the City's
GIS system.
B. Cost Estimate. The Consultant will prepare and provide an Engineer's Opinion of Probable
Construction Cost (EOPCC) at the 60%, 90%, and 100% (final) submittal milestones.
Task 3 — Survey
A. Boundary Survey. Through a subconsultant (Windrose Land Services), the Consultant will review
and show existing encumbrances as reflected in current title commitment provided by the City and
is subject to the limitations and restrictions of that commitment. The Consultant is not responsible
for abstracting subject property. Should a title commitment not be provided by client, abstracting
can be obtained by the Consultant as a pass -through cost to the City.
• If any oil, gas, or mineral leases or rights are located within a current title commitment, and
review is requested, it will be deemed an additional service and will be billed on a Time and
Materials Basis.
• All Horizontal Survey Control shall be referenced to the Texas State Plane Coordinate
System, South Central Zone, NAD83, and surveyor shall provide X/Y Coordinates for all
major property corners.
EXHIBIT A
B. Topographic Survey. Through a subconsultant (Windrose Land Services), the Consultant will
perform a Topographic Survey on a 50-ft cross -sections grid where available, including all visible
grade breaks and changes in elevation, observable utilities, striping, signs and trees, located within
proposed development site.
Vertical Topographic information will be based on the nearest existing City of Baytown
Published Benchmark and a minimum of 2 (two) temporary benchmarks will be established
on -site at the time of survey. Additional future TBM's will be set if necessary at additional
cost.
• Utility information shown on the survey is based on visible above ground improvements and
evidence found on -site at the time survey, coupled with markings from Digtess, and available
record drawings from the City of Baytown, Harris County, GCCISD, Centerpoint Energy, and
Southwestern Bell Telephone Company at the time of survey.
C. Title Report. Through a subconsultant (Windrose Land Services), the Consultant will obtain a
Limited Title Report (Title Report by others).
D. Metes and Bounds. Through a subconsultant (Windrose Land Services), the Consultant will prepare
a legal description & exhibit for the City's use in dedicating an easement outside of public ROW for
the proposed storm sewer and channel. This description will also cover the portion of existing
0101-00-00 between Lee Drive and Market Street, and the downstream portion of the existing
0101-01-01 between the end of its existing easement in Bicentennial Park and its confluence with
01010-00-00 just south of Market Street.
E. Geotechnical Bores. Through a subconsultant (Windrose Land Services), the Consultant will survey
the bore locations for inclusion on the design drawings as identified in Task 4.
Task 4: Geotechnical Investigation
A. Geotechnical Bores. Through a subconsultant (Gorrondona Engineering Services), the Consultant
will obtain approximately 4 bores: 2 bores at 25-ft depth for the storm sewer, and 2 bores at 30-ft
depth for the open channel. The sub -consultant will also install a piezometer at the most
downstream proposed channel location to monitor potential water table fluctuations.
• The subconsultant will use a truck mounted drill rig to gather soil samples at each location.
Undisturbed samples will be obtained of cohesive soils by pushing a Shelby tube (ASTM D-
1587). Standard Penetration Test samples will be obtained of granular soils (ASTM D-1586).
Representative portions of all soil samples will be sealed, packaged, and transported to the
laboratory. The sub -consultant will note any visual evidence or odor indicating hazardous
materials if encountered in the samples. Water level readings will be noted during drilling and
obtained upon completion of drilling, and 24 hours after completion of drilling, the boreholes
will be plugged with soil cuttings.
• Laboratory testing may consist of moisture contents, Atterberg limits, dry density, percentage
passing No. 200 sieve, sieve and hydrometer analysis, and unconfined compression and
unconsolidated-undrained triaxial tests depending on the soil types encountered. One
standard Proctor test (using soil cuttings obtained from drilling in the existing backfill zone)
will be performed.
• The subconsultant will analyze the field and laboratory data to develop the geotechnical
engineering report which includes:
0 soil boring logs depicting soil stratigraphy and groundwater depths;
EXHIBIT A
• seismic site class of soils as defined in the 2006 International Building Code;
• allowable capacity curves for compression loads and uplift loads;
• geotechnical guidelines for the storm sewer and channel installation; and
• dewatering guidelines and recommendations for construction.
The Consultant will submit one (1) electronic copy (pdf) of the draft geotechnical report to the City
for review and comment and one (1) electronic copy (pdf) of the final geotechnical report to the City.
B. Piezometer Installation and Monitoring. Through a subconsultant (Gorrondona Engineering
Services), the Consultant will install and monitor one (1) 30-foot depth piezometer at the
downstream bore location just south of the confluence of 0101-01-00 with 0101-00-00. The sub -
consultant will conduct six technician round trips to measure piezometer readings at 2-day, 7-day,
and four bi-weekly readings (for a minimum 2-months). Any additional readings will be taken for an
additional fee.
C. Private Utility Locates. Through a subconsultant (Gorrondona Engineering Services), the
Consultant will work with private utilities/pipeline companies to identify the location of any existing
facilities potentially impacted by the alignment. Contracting a private utility locator service is not a
guarantee that all utilities within a project site will be identified. Private utility locator services can
identify utility alignments that incorporate significant iron (ferrous) content in the conduit materials,
but private utility locator conventional methods have a higher likelihood of not accurately identify
non-ferrous utilities (such as sewer lines, copper or PVC lines, fiber optic lines, or sprinkler lines
etc.).
Task 5 — Environmental Investigation
A. Aquatic Resources Delineation. The Consultant will perform an Aquatic Resources Delineation in
general accordance with the U.S. Army Corps of Engineers (USACE) 1987 Wetlands Delineation
Manual and appropriate USACE Regional Supplement that will include a desktop review, site visit,
and "No Permit Required" Memorandum. The "No Permit Required" Memorandum will include the
following information, as applicable:
• Brief description of the project, methods/sampling procedures, and results;
• A preliminary determination and description of the potentially jurisdictional Waters of the U.S.
and potentially non -jurisdictional aquatic resources identified on the project site;
• Acreage of the project area evaluated with boundaries indicated;
• Location of the observation points/data points/soil sample stations;
• Wetland Determination Data Forms completed in accordance with USACE guidelines for the
observation points/data points/soil sample stations;
• Acreage and linear footage (if applicable) of the aquatic resources onsite and potentially
jurisdictional areas (suspect Waters of the U.S.) and potentially non jurisdictional aquatic
resources including polygons of aquatic resources (mapped by GPS) shown on exhibits;
• Historical information (including topographic quadrangle maps, historic aerial photographs,
FEMA maps, NWI maps, and soil surveys) to document the potential limits of USACE
jurisdiction for the identified aquatic resources (if applicable); and
• Professional opinions regarding the potential jurisdictional status of the identified aquatic
resources with supporting documentation and rationale.
If the project results in impacts to potentially jurisdictional waters, permitting and coordination with
the USACE Galveston District would be triggered.
Task 6: Bid Phase Services (Procurement)
Consultant shall assist the City to obtain proposals for construction of the project in a single package, via
the traditional low bid selection process. It is anticipated that this design procurement will be included in
one (1) procurement package for all facilities of the project such that only one set of contract documents
will be prepared. Th Consultant shall provide assistance to Project Team during the Procurement Process.
This shall include, but is not limited to, the following:
A. Bid Documents. The consultant will provide electronic proposal documents (plans, specifications,
and contract documents) to the City for advertisement in the City's electronic bidding system.
B. Pre -Bid Meeting. The Consultant will coordinate with the City project manager, and prepare for and
attend a pre -bid conference for prospective bidders, either virtually or at the location of the City's
choosing.
C. Bidder Questions/Addenda. The Consultant will respond to questions from bidders and suppliers
during the proposal preparation period as necessary and prepare addenda to make necessary
clarifications.
D. Bid Tabulation and Recommendation of Award. The Consultant will prepare the bid tabulation for all
received bids and offer a letter of recommendation to the City for award of the contract.
E. Conformed Contract Documents. The Consultant will prepare conformed contract documents labeled
"Issued for Construction" that incorporate all changes issued via addenda, including the project
drawings and specifications. The conformed documents will be provided to the City as one (1)
electronic format submission.
Task 7: Construction Phase Services
A. Pre -Construction Meeting, The Consultant will attend the pre -construction meeting to provide
information & answer questions
B. Monthly Construction Progress Meetings, The Consultant will attend monthly progress meetings with
the Construction Manager, Contractor, and the City as needed (maximum of 12 assumed).
C. Submittals. RFIs and Change Orders. The Consultant will review/approve and comment on
Contractor's submittals, RFIs, Contractor Proposals, and Request for Change Orders (RCO),
including coordination with Construction Manager on Proposals and Change Orders.
D. Guidance. The Consultant will Provide interpretive guidance for the Contractor and Construction
Manager in resolution of problems if requested.
E. Substantial Completion. The Consultant will conduct Substantial Completion Inspection with City staff
to:
• Review completeness of work for Substantial Completion.
• Generate a punch list of items for correction.
• Substantiate items that are completed and meet the design intent.
F. Final Notice of Acceptability of the Work. The Consultant will conduct a final site visit to determine if
the completed Work of Contractor is in conformance with the design and contract for substantial and
final completion. Once the work is determined to be complete and in conformance, the Consultant
EXHIBIT
will issue a Final Completion & Acceptance letter to City recommending acceptance & release of final
payment.
G. As -Built Drawing Coordination. The Consultant will coordinate with the Contractor and the
Construction Manager to provide a complete record of the As -Built Drawings.
H. Record Drawings. Within thirty (30) days after receipt of As-Builts from the Contractor to the
Construction Manager, the Consultant shall provide to the City one (1) set of full size reproducible
record drawings, an electronic file copy (PDF format) and an AutoCAD file (.dwg), or compatible
Axf file.
Task 8: Additional Services — As -Directed Professional Services
There may be services and/or fees related to the project that the City desires the Consultant to pursue that
are as of yet unaccounted for in the fees of Tasks 1-7. This Task 8 is a reserve task to allow the City to
direct the Consultant on an as -needed basis to perform duties and/or pay for expenses that may be
unforeseen as of the acceptance date of this proposal, up to a maximum limit of $10,000. Any requested
Consultant efforts that would require funds above this value will be pursued as either an amendment to this
contract, or a new contract (at the City's discretion).
Like Task 6 and Task 7, Task 8 is provided as an hourly not to exceed fee task. Any expenditures by the
Consultant for this task are to be exclusively directed by the City, with their prior knowledge and written
consent before the Consultant applies the effort. If the task goes unused or used less by the Consultant
than the express maximum task amount allowance of $10.000, the Consultant will not charge the City for
the remaining unused amount for Task 8, and will acknowledge in writing that payment for the total contract
fee shall be reimbursed to the Consultant by the City at an adjusted value that is reduced by the unused
portion of Task 8 from final payment.
EXHIBIT A
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EXHIBIT B
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EXHIBIT A
EXHIBIT B
City of Baytown - Goose Creek Tributary Realignment Final Design
LEVEL OF EFFORT SU111DIARV - SUB BREAK OUT - TASK 3 - SURVEY
Subtaik ID
Number
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EXHIBIT A
EXHIBIT 8
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EXHIBIT A
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EXHIBIT B
Goose Creek Tributary Realignment Final Design Fee Summary by Task
Task
Task Name
Fee
Fee Type
1
Meetings, Coordination, and Data Collection
$ 25,100.00
LS
2
Final Design
$ 90,400.00
LS
3
Survey
$ 14,300.00
LS
4
Geotechnical Investigation
$ 12,400.00
LS
5
Environmental Investigation
$ 7,600.00
LS
Design Fee Total
$ 149,800.00
6
Bid Phase Services
$ 13,300.00
HNTE
7
Construction Phase Services
$ 37,900.00
HNTE
8
Additional Services - As -Directed Professional Services
$ 10,000.00 1
HNTE
Total Contract Fee Total
j $ 211,000.00
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EXHIBIT A
Map 1 — Area Map
an appraoumaWn and are suf4ed
nge upon reoerpt of survey data_
se figures are for Rustrabon pur-
as ordy