BAWA Resolution No. 2010-11 RESOLUTION NO. 2010-11
A RESOLUTION OF IIIE BOARD OF DIRECTORS OP 'LIFE BAYTOWN ARLA
WATER AUTHORITY AUTHORIZING AN AGREEN1LNr FOR PROFESSIONAL
SERVICES WITH MALCOLM PIRNIE, INC., FOR EMERGENCY POWER
IMPROVEMENTS FOR THE BAYTOWN AREA WATER AUTHORITY WATER
TRFATMFNT PLANT SUB7ECP'fO THE CITY COUNCIL'S APPROVAL Or THE
AGREEMENT; AUTHORIZING PAYMENT BY THE BAYTOWN AREA WATER
AUTHORITY IN THE AMOUN F OF TWO HUNDRED SIXTY-SEVEN THOUSAND
EIGHT HUNDRED AND NO/100 DOLLARS ($267.800.00); AND PROVIDING FOR
If IF EFFECTIVE DATE 77IFREOF.
BE IF RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER
AUTHORITY:
Section l: That subject to the approval of the City Council of tine City of Baytown, 'feeas,
the Board of Directors of tie Baytown Area Water Authority hereby authorizes an .Agreement:for
Professional Set-vices with Malcolin Finnic,.Inc., for professional sclvices related to emergency power
improvements for the Baytown Area Water Authority's Water 'Treatment Plant. A copy of said
agreement:is attached hereto as Exhibit "A"and incorporated herein forall intents and purposes.
Section2:. That the Board of Directors of the Baytown Area Water Authority authorir-es
payment to Malcolm Punic. Inc.. in an amount not to exceed 'TWO HUNDRED SIXTY-SEVEN
111OUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($267,800.00), pursumrt to the Agreement.
Section 3: That the General Manager is hereby granted general authority to approve any
change order involvinga decrease or an increase in costs.(>f TWENTY FIVE"ITiOUCAND AND NO/106
DOLLARS ($25,000.00)or less. provided that fie original contract price may not be increased by more
than nor percent(10%) or decreased by more than ton percent(I0%)without the consent of the contractor
to such decrease.
Section 4: This resolution shall take effect immediately from and after its passage by the
Board of Director office Baytown Area Water Authority.
INTRODUCED, READ and PASSED, by the affirmative vote of the Board of Directors of the
Baytown Area Water Authority this the 17`'day of\oventbw,2010.
2�.
vvvvvruuu u r t �?''L���( e�_
o" ,�,y ViATER r B :NDA BR I Y Sh117Fi,Ptes'ideitt
V � � n
�, Car � istmrt Secretary
t�
ffyr/�:(trltil tt�Vtl\\\1��
APPROVED AS TO FORM:
4( �CIO fLAMIRG%, SR., Gene al owisel
It 2010NovonrbeiACDnC'v. H. .inryw'aM lwhn PlmiaAac
Exhibit "A"
CONTRACT
PART I
AGREEMENT
THIS AGREEMENT, entered Into this _ day of . 2010, by and between the
BAYTOWN AREA WATER AUTHORITY, hereinafter called "BAWA" and MALCOLM PIRNIE, INC.,
hereinafter called"Flan°
WITNESSETH THAT;
WHEREAS,BAWA desires to implement a water treatment plant emergency power Improvements project
under the general direction of the Texas Department of Rural Affairs' CDBG Disaster Recovery
Entitlement Grant Program;and
WHEREAS, BAWA desires to engage the Firm to render certain services in connection with its water
treatment plant emergency power improvements 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
perfomance standards relating to water facilitles-la, which Is incorporated into the Texas
Department of Rural Affairs Contract No. DR8010220, 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 BAWA of a
written notice to proceed. In any event, all of the services required and performed hereunder
shell 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 Finn by BAWA and its agencies. No charge
will be made to for such information and BAWA and Ks 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 BAWA 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 BAWA.
b. The Firm understands and agrees that any and all GIS data provided by BAWA and
copies of the same 0) are property of BAWA; n 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 BAWA for the some, the Firm shall provide a swom 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 Finn understands that certain data sets
are licensed to BAWA 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 BAWA 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 (i) fifteen percent (15%) of the amount bld by the successful
bidder of the Project or (ii) TWO HUNDRED SIXTY-SEVEN THOUSAND EIGHT
HUNDRED AND NO1100 DOLLARS ($287,800.00), whichever is less. Payment to the
Firm for basic engineering services shall be In the amount of TWO HUNDRED FORTY-
FOUR THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($244,500.00) 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 TWENTY-THREE THOUSAND THREE HUNDRED AND NO/100 DOLLARS
($23,300.00) and to be paid per method described in Part III and invoiced no more
frequently than once monthly.
b. BAWA has no BAWA funds for the services to be rendered under this Contract. It is
expressly agreed and understood that this Contract is predicated and conditioned upon
BAWA receiving funds for the purpose of paying the entire obligation of BAWA under this
Contract from funds to be received from the Grant. The Firm agrees that BAWA will not
be responsible for the payment for services if the Grant funds referenced heretnabove
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 harrdess BAWA 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, worker's compensation and
Income tax laws.
THE FIRM AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND
DEFEND BAWA, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER
REFERRED TO AS "BAWA") 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 CONSULTANTS
PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH CONSULTANT AND BAWA, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND
PROTECT BAWA FROM THE CONSEQUENCES OF CONSULTANTS
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS
WELL AS THE CONSULTANTS 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 CONSULTANTS PARTIES. IN THE EVENT
2
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST SAWA FROM
WHICH BAWA IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL
COUNSEL ACCEPTABLE TO BAWA. 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 Insure 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 Finn's profession practicing under the same or similar
circumstances,time and locality.
g. Upon execution of this Contract, the Firm grants to BAWA an ownership interest in the
Instruments of Service. The Finn shall obtain similar Interests from BAWA and the Firm's
consultants consistent with this Contract. The Firm shall be required to tender to SAWA 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 BAWA may use the
Instruments of Service for any purposes which BAWA sees fit, including,but not limited to,
subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a
condition to BAWA's use of the Instruments of Service, SAWA hereby expressly agrees to
remove the Firm's name and all references to the Firm and its consultants from the
Documents. Any reuse of such Instruments of service for other than their Intended purpose
will be at SAWA's sole risk. Provided that this Contract Is not terminated for cause by
BAWA,BAWA shall release any and all claims which BAWA could make arising out of or In
connection with any reuse of the documents by BAWA.
h. The Finn shall procure and maintain at its sole cost and expense for the duration of the
Contract, insurance against claims for Injures to person or damages to property which may
arise from or In connection with the performance of the Work hereunder by the Finn, its
agents.representatives,volunteers,employees or subconsultants.
3
(1) The FInVs insurance coverage shall be primary insurance with respect to BAWA,
Its officials,employees and agents. Any insurance or self-insurance maintained
by BAWA,its officials, employees or agents shall be considered In excess of the
Firm's insurance and shall not contribute to it. Further,the Finn 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 fallowing is a list of standard insurance policies along with their respective
minimum coverage amounts required In this Contract:
(a) Commercial General Liability
■ General Aggregate: $2,000,000
■ Products&Completed Operations Aggregate: $1,000,000
■ Personal&Advertising Injury:$1,000,000
■ Per Occurrence: $1,000,000
■ Fire Damage$50,000
■ Coverage shall be at least as broad as ISO CG 00 01 10 93
■ No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
(b) Business Automobile Policy
■ Combined Single Limits: $1,000,000
■ Coverage for"Any Auto"
(c) 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 construction of the
Project is completed.
(d) Workers'Compensatlon
■ Statutory Limits
■ Employer's Liability$5W,000
■ Waiver of Subrogation required.
(2) The following shall be applicable to all policies of insurance required herein.
(a) Insurance canter for all liability policies must have an A.M.Best Rating of
B♦:VIiI or better.
(b) Only Insurance carriers licensed and admitted to do business in the State
of Texas will be accepted.
(c) Liability policies must be on occurrence form. Errors and Omissions can
be on claims-made form.
(d) Each Insurance policy shall be endorsed to state that coverage shall not
be suspended, voided. canceled or reduced In coverage or in limits
except after thirty (30) days' prior written notice by certified mail, return
receipt requested,has been given to BAWA.
(e) BAWA, Its officers, agents and employees are to be added as Additional
Insureds to all liability policies, with the exception of the Errors and
Omissions Policy required herein.
4
(f) Upon request and without cost to BAWA,certified copies of all insurance
policies and/or certificates of insurance shall be furnished to BAWA.
(g) Upon request and without cost to BAWA, loss runs (claims listing)of any
and/or all insurance coverages shall be furnished to BAWA.
(h) All insurance required herein shall be secured and maintained in a
company or companies satisfactory to BAWA, and shall be carded in the
name of the Firm. The Firm shall provide copies of insurance policies
required hereunder to BAWA on or before the effective date of this
Contract.
i. 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 BAWA:
BAYTOWN AREA WATER AUTHORITY
Attn: General Manager
P.O.Box 424
Baytown,Texas 77522-0424
FAX:261-420-6586
For the Firm:
MALCOLM PIRNIE,INC.
Attn: Mr.Gary Rabelais,P.E.
1700 West Loop South,Suite 1450
Houston,TX 77027
FAX:713-840.1207
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 BAWA only.
k Notwithstanding anything to the contrary contained in this Contract, BAWA and the Firm
hereby agree that no claim or dispute between BAWA 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 BAWA is subjected to an arbitration
proceeding notwithstanding this provision, the Firm consents to be joined In the
arbitration proceeding if the FirnYs presence is required or requested by BAWA for
complete relief to be recorded in the arbitration proceeding.
5
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.
M. This Contract represents the entire and integrated agreement between BAWA 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. BAWA 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 WITNESSETH HEREOF,the parties have hereunto set their hands and seals.
BAYTOWN AREA WATER AUTHORITY FIRM: MALCOLM PIRNIE, INC.
BY:
General Manager
(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 BAWA regarding the requirements of the project.
2. 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 BAWA 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 Finn will review any tests required and act as BAWA's representative
In connection with any such services.
3. 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 BAWA,to include
preliminary layouts,sketches and cost estimates for the project,and to set forth dearly the Firm's
recommendations;to be completed within 14 days of contract execution.
4. Furnish BAWA 3 paper copies and one electronic copy in pdf format of the preliminary report, if
applicable(additional copies will be furnished to BAWA at direct cost of reproduction);
5. Furnish BAWA a written monthly status report at least seven (7) days prior to the second
regularly scheduled BAWA meeting until the project Is dosed by the Texas Department of Rural
Affairs(TDRA).The format for this report shall meet the approval of BAWA's Engineer.
6. Submit detailed drawings and plansispecifications to appropriate regulatory agency(les) and
obtain clearance. All submissions will be approved In writing by BAWA's Engineer prior to
submission to other regulatory agencies.
7. Prepare bid packet/contract documents/advertisement for bids. At the time the bid packet is
completed,the Firm shall also furnish to BAWA an updated written Estimate of Probable Costs
for the Project.
8. Make 10-day call to confirm prevailing wage decision Issued by TxCDBG.
9. Incorporate any and all wage rate modifications or supersedes via bid addendum(if applicable).
10. Attend mandatory prebld meeting, issue addenda as necessary to clarify the project, conduct bid
opening, provide a recommendatlon for award, prepare all necessary minutes as requested by
BAWA's Engineer,and assist with bid protests and rebidding.
11. Tabulate,analyze,and review bids for completeness and accuracy.
12. Accomplish Construction Contractor eligibility verification.
13. Conduct pre-construction conference and prepare copy of reports/minutes.
14. Assist BAWA with document preparation necessary to issue Start of Construction Notice to
TCDBG and Notice to Proceed to construction contractor.
15. 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.
7
16. Design for access by persons with disabilities to facilities to be used by the public in accordance
with Public Law 5".
17. Use SAWA's form for instructions to bldders,general conditions, contract, bid bond, performance
bond,payment bond,and maintenance bond that have TxCDBG approval,as required.
18. 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.
19. Consult with and advise SAWA during construction; Issue to contractors all Instructions requested
by SAWA;and prepare routine change orders if required, at no charge for engineering services to
SAWA when the change order is required to correct errors or omissions by the Firm;provide price
analysis for change orders; process change orders approved by SAWA and the project engineer
and submit to TxCDSG for approval prior to execution with the construction contractor.
20. 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).
21. Consider and evaluate suggestions or recommendations which may be submitted by the
Contractor to the Firm or SAWA and report them with recommendations for the Firms and
BAWA's final decision.
22. Assist SAWA with the review of all payment requests within 10 days of receipt of signed pay
request from the Construction Contractor.
23. 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 SAWA, 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.
24. Attend on-site project meetings as and when requested by SAWA's Engineer, prepare minutes of
the same,take photos and make reports of progress.
25. Recommend that appropriate retainage be withheld In accordance with V.T.C.S., Government
Code§§2253.001,at seq., from all payments on construction contracts until final acceptance by
SAWA and approval by TxCDBG,unless State or local law provides otherwise.
25. Prepare Certificate of Construction Completion and Clean Lien Certificate. A Clean Lien
Certificate shall be prepared for each of the Prime Contractors) and each of the subcontractor(s).
27. Conduct Interim/final inspections.
28. Revise contract drawings to show the work as actually constructed, and furnish BAWA with a set
of"record drawings"plans.
29. 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 SAWA. The digital copy provided shall not include a digital representation
of the engineer's 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
a
BAWA. to 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 SAWA
in written form.
SCOPE OF SPECIAL SERVICES
1. Preliminary Evaluation of Project Scope
a. Advise as to the necessity of BAWA's providing additional data or services of the types
which are not part of Firm's Basic Services, and assist BAWA in obtaining such data and
services.
b. Identify and evaluate potential solutions available to BAWA, and after consultations with
BAWA, recommend to BAWA those solutions, which in Firms judgment meet BAWA's
requirements for the Project.
C. Perform or provide the following additional Preliminary Evaluation of Project Scope tasks
ordeliverables:
i. Initial facility inspection by Firm.
Ii. Generator load calculations for each site to estimate generator KW size and
approximate dimensions and weight.
10. Preliminary site layouts with natural ground elevation, 100-year iloodplain
elevation, and approximate generator location.
d. Provide BAWA 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. Geotechnical(HVJ Associates).
a. Subconsultant shall perform all geotechnical services for the design phase of the project,
which shall include, but not be limited to, auger borings, core borings, soil tests. or other
subsurface explorations.
b. Subconsultant shall perform all geotechnical services for the construction phase of the
project, which shall. include, but not be limited to. laboratory testing and Inspecting of
samples or materials, unless otherwise provided by construction contractor as specified
In the construction contract.
3. Surveying Services. These services include any necessary surveys of existing rights-of-way,
topography,utilities,or other field data required for proper design of the project.
4. 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 casts, 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
BAWA.
9
2. The Firm shall, prior to proceeding with the work, notify BAWA 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, BAWA determines that any subcontractor is incompetent
or undesirable, BAWA 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 some regulations. Nothing contained in this Contract shall
create any contractual relation between any subcontractor and BAWA.
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 308 of the Clean Air Act 142 U.S. 1857 (Section 508 of the Clean Water Act
(33 U.S.C. 1388d). Executive Order 11738, and Environmental Protection Agency regulations(40
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 then 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.
8. The Finn will Include In all contracts and subcontracts in excess of$10,000 suitable provisions for
termination by BAWA 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 Finn.
7. The Finn will include In all contracts and subcontracts in excess of$10,000 provisions requiring
compliance with the following:
> 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.
>r Executive Order 11246-Equal Employment Opportunity.
Copeland Anti-Kickback Act.
> Davts-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.
> 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.
9. The Finn will include In all negotiated contracts and subcontracts a provision to the effect that
BAWA, TxCDBG, the Comptroller General of the State of Texas, or any of their duty authorized
representatives, shall have access to any books, documents, papers and records of the
10
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 SAWA has made final payment to the
Contractor and all other pending matters are closed.
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 Firm represents that services provided under this Contract shall be performed within the
limits prescribed by BAWA In a manner consistent with that level of care and skill ordinarily
exercised by other professional consultants under similar circumstances.
3. Any deficiency In Firrn'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 BAWA shall not be responsible for
discovering deficiencies therein. The Firm shall correct such deficiencies without additional
oompensation. BAWA's approval, acceptance, use of or payment for all or any part of the Finm's
services hereunder or of the work itself shall In no way alter the Firms obligations or BAWA's
rights under this Contract. BAWA 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 provision shall in no way limit the judicial remedies available to BAWA
under applicable state or federal law.
4. By this Contract,BAWA does not consent to litigation or suit,and BAWA hereby expressly
revokes any consent to litigation that it may have granted by the terns 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 BAWA's sovereign Immunity. The Firm assumes full
responsibility for Its work performed hereunder and hereby releases, relinquishes and
discharges BAWA, 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 Fire'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.
11
PART UI--PAYMENT SCHEDULE
PROFESSIONAL ENGINEERING/ARCHITECTURAL SERVICES
BAWA shall reimburse the Firm for basic engineering 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 Contract
Fee Fee
•Approval of Preliminary Engineering Plans and Specifications by 20% $48,900
BAWA.
•Approval of Plans and Specifications by Regulatory Agency(ies). 45% $110,025
•Completion of bid advertisement and contract award. 15% $36.875
•Completion of shop and working drawing reviews. 10% $24.450
•Completion of Final Closeout Assessment and submittal of'As Bulits' 5% $12,225
to BAWA.
•Completion of final Inspection and acceptance by BAWA. 5% $12,225
Total 100% $244,600
SPECIAL SERVICES
The fee for all Special Services shall not exceed a total of TWENTY-THREE THOUSAND THREE
HUNDRED AND NO/100 DOLLARS ($23,300.00) subject to the limitations in Part 1, Section 4. in
accordance with the following:
1. The Firm shall be paid upon completion of Preliminary Evaluation of Project Scope the sum of
FIVE THOUSAND NO/100 DOLLARS($5,000.00).
2. The Firm shall be paid upon completion of Geotechnical Services by HVJ Associates the sum of
SIX THOUSAND ONE HUNDRED FIFTY AND NO/100 DOLLARS($5.150.00).
3. The Firm shall be paid upon completion of Surveying Services the sum of THREE THOUSAND
FIVE HUNDRED AND NO/100 DOLLARS($3,500.00).
4. 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 a total of TEN THOUSAND SIX HUNDRED FIFTY AND NO/100 DOLLARS
($10,850.00).
S. The payment requests shall be prepared by the Finn with work In progress to substantiate the
amounts requested.
6. Any work performed by the Firm prior to the execution of this contract is at the Finn's sole risk
and expense.
7. If the Finn, at any time during the tern of this Contract, incurs a debt, as the word is defined In
section 2-682 of the Code of Ordinances of the City of Baytown, it shall immediately notify
BAWA's Director of Finance In writing. If BAWA's Director of Finance becomes aware that the
Firm has incurred a debt, BAWA'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, SAWA's
12
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.
I
13
E
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, BAWA 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 SAWA,
become its property and the Finn 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 SAWA Is tendered to SAWA.
Notwithstanding the above, the Firm shall not be relieved of liability to SAWA for damages
sustained by SAWA by virtue of any breach of the Contract by the Firm,and SAWA may withhold
any payments to the Firm for the purpose of set-off until such time as the enact amount of
damages due SAWA from the Finn is determined.
2. Termination for Convenience of SAWA. SAWA 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 SAWA as
provided herein, the Finn 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 SAWA 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 Firn's compensation, which are mutually agreed upon by and between SAWA 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 SAWA.
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.
Q None of the work or services covered by this Contract shall be subcontracted without the
prior written approval of SAWA.Any work or services subcontracted hereunder shall be
specified by written contract or agreement and shall be subject to each provision of this
Contract.
S. 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
SAWA thereto; provided, however, that claims for money by the Firm from SAWA under this
Contract may be assigned to a bank, trust company, or other financial institution without such
approval.Whitten notice of any such assignment or transfer shall be furnished promptly to SAWA.
The Finn may not sell or assign all or part Interest in this Contract to another party or parties
without the prior express written approval of SAWA's General Manager of such sale or
assignment. For any other assignment, SAWA may require any records or financial statements
necessary in Its opinion to ensure such sale or assignment will be in the best interest of SAWA.
14
6. Reports and Information. The Firm, at such times and In such forms as BAWA may require,shall
fumish SAWA 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 SAWA 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 670.490 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. BAWA 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. Findinos Confide tidal. All of the reports, information, data, etc., prepared or assembled by the
Firm under this contract are confidential and the Finn agrees that they shall not be made
available to any individual or organization without the prior written approval of BAWA.
9. Comnight. 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 Finn shall comply with all applicable laws, ordinances and
codes of the State and local governments, and the Firm shall save BAWA harmless with respect
to any damages arising from any tort done In performing any of the work embraced by this
Contract.
11. Enual Employment Opportunity. During the performance of this Contract, the Finn 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 BAWA 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 Finn, state that all qualified applicants will receive consideration for employment
without regard to race,creed,color,sex,handicap or national original.
a 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 1984. Under Title VI of the Civil Rights Act of 1984, 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.
1s
13. Section 109 of the Housing 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. "SectlorL3"Compliance In the Provision of Training. Employment and Business Opportunities.
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 end Is subject to the requirements of Section 3 of the Housing and Urban
Development Act of 1968, as amended, 12 U.S.C. 1701 u. 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 project.
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 Overt Affirmative Action for Handicagped 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 Flrm'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
18
the Office of Federal Contract Compliance Programs may direct to enforce such
provisions,Including action for non-compliance.
16. Interest of Members of BAWA. No member of the governing body of BAWA and no other officer,
employee, or agent of BAWA,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
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 goveming body of BAWA and no other
public official of such BAWA. 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
Indirect,In this Contract; and the Firm shall take appropriate steps to assure compliance.
18. Interest of Firm and Emolovess. The Firm 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 perforrnence of this Contrail, no person having
any such Interest shall be employed,
17
PART V
PROJECT TIME SCHEDULE
PROFESSIONAL ENGINEERINGIARCHITECTURAL SERVICES
Completion
Date
Notice to Proceed 24-Nov-10
Submit Preliminary Engineering Report 09-Dec-10
BAWA Review 14-Dec-10
50%Design Submittal 28-Jan-11
BAWA Review 02-Feb-11
90%Design Submittal 04-Mar-11
BAWA Review 09-Mar-11
Submit Bid Documents 16-Mar:11
Advertise&Bid 17-Mar-11
Receive Bids 30-Mar-11
Award&Prepare Contracts 29-Apr-11
Construction 26-Oct-11
Inspections&Record Drawings 08-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 far 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
BAWA Board of Directors of the project.
18