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Ordinance No. 14,935 ORDINANCE NO. 14,935 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH BPS PROFESSIONAL SERVICES; AUTHORIZING PAYMENT FOR SERVICES UNDER THE CONTRACT FROM GRANT FUNDS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and the City Clerk of the City of Baytown to execute and attest to a Professional Services Agreement with BPS Professional Services. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to BPS Professional Services in accordance with Grant/Award Number G20HN0005A or any successor grant made available through the Office of National Drug Control Policy for the purposes specified in Exhibit "A," and all compensation for services performed under the agreement will be from these grant funds. Section 3: 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 Ci Council of the City of Baytown this the 281h day of October, 2021. AA O C P TILL , Mayor ATTEST: ��•.�ue.JOC .IOpO �'� �G o4e O ^ 1 Y, b ANGELA ACKSON, rw J APPROVED AS TO FORM: KAREN L. HORNER, City Attorney R:''Karen Horner Documents'Files�City Council,,Ordinances12021 October 28',RPS Pro fessiona1ServicesProfessionalServices202l,20220rdinancc,docx Exhibit "A" Professional Services Agreement Between The City of Baytown and BPS Professional Services, Inc. STATE OF TEXAS ti COUNTY OF HARRIS This Agreement ("this Agreement") shall evidence the terms by which the City of Baytown (the "City") engages BPS Professional Services, Inc., an independent contractor (the "Contractor"), for the purpose of performing the services hereinafter enumerated in relation to the Houston High Intensity Drug Trafficking Area ("HIDTA"), with such additional duties and responsibilities as may be hereinafter prescribed from time to time by the Office of National Drug Control Policy ("ONDCP") and the Houston HIDTA Executive Board. The Agreement is expressly contingent on funding by Grant/Award Number G21 HN0005A or any successor grant made available through the Office of National Drug Control Policy ("ONDCP"), for the purposes expressed herein. 1. Term of Agreement: Subject to the above-referenced contingency, the term of this Agreement shall be the twelve-month period commencing on October 1, 2021, through September 30, 2022. 2. Services: Contractor agrees to perform the professional services as directed by the HIDTA Executive Board and ONDCP, including, but not limited to, the following: a. serving as a liaison between the ONDCP and other HIDTA's throughout the country and the various law enforcement agencies and initiatives within the Houston HIDTA; b. reviewing threat assessments/strategies/budget proposals to ensure the initiatives conform to the goals of the national HIDTA program and the overall Houston HIDTA focus; C. providing creative input and direction for the HIDTA program; d. coordinating, preparing and timely submitting the HIDTA reports required by the ONDCP; Professional Services Agreement BPS Professional Services,Inc.,Page I e. evaluating individual HIDTA-funded initiatives to ensure their focus complies with the target assessment and strategy developed for the overall Houston HIDTA; f. developing and maintaining an inventory of all specialized equipment obtained and utilized by the HIDTA; g. developing and maintaining procedures for tracking the various law enforcement statistics for all the HIDTA components; h. establishing a Houston HIDTA-wide accounting system to track program funding and establish an audit trail; i. serving as an independent, interagency mediation resource and liaison for agency heads and the initiatives' leadership; j. maintaining contacts and work with other HIDTA Directors throughout the country to develop and ensure a coordinated national focus for the various HIDTA's with shared information and resources as appropriate; k. working with DOD groups, national communications companies, other HIDTA groups and local initiative technicians to develop ADP systems which most effectively meet the needs of HIDTA yet remain within the guidelines of various agency headquarters; 1. reviewing budget submissions and reprogramming requests to ensure integrity of HIDTA-budget expenditures; M. coordinating with initiative leaders to avoid duplication of effort through the various HIDTA initiatives and maximize the use of HIDTA personnel and material resources; n. exercising programmatic, administrative and fiscal oversight and support of all HIDTA initiatives and ensure they are in compliance with the ONDCP/HIDTA Program Guidance and other program requirements, expressly excluding exercising operation control of law enforcement initiatives; o. performing additional duties/requirements identified by the Executive Board which must be consistent with ONDCP/HIDTA Program Guidance and deemed necessary to enhance the HIDTA Program; P. with the concurrence of the Executive Board, hiring staff personnel for HIDTA,which positions have been approved and funded by the ONDCP; Professional Services Agreement BPS Professional Services,Inc.,Page 2 q. providing daily supervision, and other requirement management functions for all staff employees of HIDTA; and r. complying with the Financial and Administrative Guidelines established by the HIDTA Assistance Center dated January 1997, and as hereinafter amended, which are incorporated herein by this reference for all intents and purposes. The City's only responsibility under this Contract is to administer the cooperative agreement contract between the ONDCP and the City by supplying the ONDCP the proper documentation regarding any payment due the Contractor and disbursing such funds to the Contractor. 3. Relationship: Contractor is and shall at all times be an independent contractor and is not to be considered an agent or employee of the City. 4. Limitation of Authority: Notwithstanding anything to the contrary herein, Contractor will have no authority whatsoever over and no duty with respect to any operational control of law enforcement by HIDTA. Contractor will not be held responsible for the actions or omissions of any law enforcement personnel working on or behalf of HIDTA, including, but not limited to any alleged failure to adequately train,direct or supervise such personnel. 5. Payment: As full payment for those professional/personal services rendered in accordance with this Agreement, the City shall disburse to Contractor the amount approved by ONDCP for professional services during the term of this Agreement. Such amount is expected to be a sum equal to a Federal GS 14-5 scale with locality pay plus 30% for fringe benefits, for the services to be provided by Contractor, to be paid in equal installments, monthly. This payment may increase should the Federal GS 14-5 scale increase during the term of this Agreement. 6. Expense Reimbursement: Contractor shall be entitled to reimbursement for certain approved expenses incurred while performing the services contained in this Agreement in accordance with Payment and Expense Reimbursement over the term of this Agreement. 7. Payment and Expense Reimbursement Approval: Payment for services rendered shall be paid on a monthly basis. Contractor shall submit a monthly billing indicating the monthly payment and shall submit the original receipts for expenses to be reimbursed. All requests for payment and/or reimbursement shall be reviewed and approved for payment by the ONDCP or its designee prior to submission to the City. Professional Services Agreement BPS Professional Services,Inc.,Page 3 All requests for expense reimbursement submitted shall be in conformance with current published guidelines used in the administration of the High Intensity Drug Trafficking Area Grant Programs. 8. Payment and Expense Reimbursement Processing: Contractor shall submit approved invoices to the Chief of Police for payment and reimbursement. The Chief of Police shall arrange for the payment of such invoices through the appropriate City of Baytown processes. 9. Taxes: Contractor shall be solely responsible for any and all federal, state and local tax consequences that result from its receipt of any payments or reimbursements paid in accordance with this Agreement. 10. Automobile Allowance: Contractor shall be provided a monthly automobile allowance in the amount determined by the Executive Board for the term of this Agreement. Contractor shall be responsible for the purchase or lease of the vehicle as well as all maintenance, insurance and any and all other vehicle-related expenses. The City will not be held responsible for any expenses, liabilities, claims or other matters stemming from the operation of this vehicle. Contractor shall at all times during the term of this Agreement have a current valid Texas driver's license and shall produce upon the City's request the same along with a valid insurance certificate showing coverages deemed appropriate by the City. 11. Termination: This Agreement may be terminated by either party at any time without cause; provided, however, should the Contractor terminate this Agreement, the Contractor shall give the City seven (7) days' written notice of its intent to terminate the Agreement. Contractor understands that should he no longer be able to perform the services required herein for any reason, this entire Agreement shall automatically terminate without notice. In any event, at the termination of this Agreement, the Contractor shall receive as its sole compensation, payment for the services actually performed in accordance with the payment provision of article 4 hereof plus any expenses to which he is due and owing at the time of the termination. All such termination payments shall be subject to the contingency first listed hereinabove. 12. Notice:All notices required to be given hereunder shall be given in writing by telecopier, overnight, or facsimile transmission, certified or registered mail or by hand delivery at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following address: CONTRACTOR BPS Professional Services, Inc. Attn. President 811 Hannock Glen Lane Spring, TX 77373-8213 Fax: Professional Services Agreement BPS Professional Services,Inc.,Page 4 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown,TX 77522 Fax: (281)420-6586 13. Miscellaneous Provisions: (a) This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Contractor and the City only. (b) This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. (c) INDEMNITY THE CONTRACTOR, ITS OFFICERS, AGENTS AND EMPLOYEES AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR ANY AND ALL INJURIES TO OR DEATH OF ANY PERSON OR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED OR ADVICE GIVEN BY THE CONTRACTOR, its OFFICERS, AGENTS OR EMPLOYEES PURSUANT TO THIS AGREEMENT, WHERE SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS OFFICERS AGENTS AND/OR EMPLOYEES AND/OR THE SOLE OR JOINT NEGLIGENCE OF THE CONTRACTOR, its OFFICERS AGENTS AND/OR EMPLOYEES. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE CONTRACTOR TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (I) FROM Professional Services Agreement BPS Professional Services,Inc.,Page 5 THE CONSEQUENCES OF THE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS OR EMPLOYEES, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE, AND/OR (II) FROM THE CONSEQUENCES OF THE NEGLIGENCE OF THE CONTRACTOR, its OFFICERS, AGENTS AND/OR EMPLOYEES, WHETHER THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE THE CONTRACTOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY, WHICH ACCEPTANCE SHALL NOT BE UNREASONABLY WITHHELD. This indemnity provision shall survive the termination or expiration of this Agreement and shall remain in full force and effect. Upon termination or expiration of this Agreement, the parties hereto agree that the above-referenced indemnity and the release contained in subsection (d) of this section shall not expire but shall remain in effect. (d) By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Contractor does hereby, for itself, its officers, agents, employees, successors, and assigns, collectively referred to in this paragraph as "Contractor," release, acquit, and forever discharge the City, its officers, agents, and employees, collectively referred to in this paragraph as "City," of and from any and all debts, damages, claims, causes of action, suits, liabilities, and demands of whatever nature, which Contractor might now have or that might subsequently accrue by reason of any matter or thing whatsoever and particularly growing out of or in any way connected with, directly or indirectly, this Agreement and/or the services to be performed pursuant to the same, including, but not limited to, any claims for any workers' compensation, health insurance or any other benefit provided by the City to its officers and/or employees; any claims challenging the constitutionality or legality of any provision of this Agreement; any and all existing or future common law, statutes, civil rights, or constitutional claims; and any tort claims of any nature. (e) Contractor covenants and agrees that he will not employ any individual to perform the services hereinbefore described pursuant to this Agreement unless such individual has signed a release and indemnity agreement releasing and indemnifying the City from all claims, losses, damages, causes of action, suits and liability of every Professional Services Agreement BPS Professional Services,Inc.,Page 6 kind, regardless of any negligence on the part of the City. Such release and indemnity agreement must be in accordance with and provide at a minimum the same protections to the City as afforded in subsections(c) and (d) hereinabove. (f) Notwithstanding anything to the contrary contained in this Agreement, the City and the Contractor hereby agree that no claim or dispute between the City and the Contractor 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. Section 1 - 14), or any applicable state arbitration statue, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Contractor consents to be joined in the arbitration proceeding if the Contractor's presence is required or requested by the City for complete relief to be recorded in the arbitration proceeding. (g) Neither the Contractor nor the City shall sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the other party. (h) Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. (i) This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 0) 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. (k) 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. (1) This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the City and the Contractor only. (m) Contractor agrees that in the performance of its undertakings and obligations under this Agreement, Contractor will strictly observe and abide by all rules, United Professional Services Agreement BPS Professional Services,Inc.,Page 7 States of America,the State of Texas and the City of Baytown,as they now exist or may hereinafter be enacted or amended. (1) The officers executing this Agreement on behalf of the parties hereby confirm 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 Amendment in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same amendment, this day of , 2021. CONTRACTOR: BPS PROFESSIONAL SERVICES, INC. BRYAN P. SMITH, President CITY OF BAYTOWN, TEXAS: RICHARD L. DAVIS, City Manager ATTEST: ANGELA JACKSON, City Clerk APPROVED AS TO FORM: KAREN L. HORNER, City Attorney Professional Services Agreement BPS Professional Services,Inc.,Page 8 STATE OF TEXAS § § COUNTY OF HARRIS § Before me, the undersigned notary public, on this day personally appeared BRYAN P. SMITH, President of BPS Professional Services, Inc. known to me; proved to me on the oath of ; or proved to me through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of ) 2021. Notary Public in and for the State of Texas My commission expires: RAKaren Horner\Docu[i]entsTiles\Contracts\HIDTA Contract\ProfessionalServicesAgreenzentBPSProfessionalServices2021-2022.doc Professional Services Agreement BPS Professional Services,Inc.,Page 9