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Ordinance No. 14,923 ORDINANCE NO. 14,923 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A CONSULTING SERVICES AGREEMENT WITH TERRACON CONSULTANTS, INC., FOR CONSTRUCTION MATERIAL TESTING SERVICES FOR THE BAYTOWN PUBLIC SAFETY FACILITY PHASE IA PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED FIFTY-FIVE THOUSAND FIVE HUNDRED TWENTY AND NO1100 DOLLARS ($155,520.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown,Texas,hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Consulting Services Agreement with Terracon Consultants, Inc., for construction material testing services for the Baytown Public Safety Facility Phase IA 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 Terracon Consultants, Inc., in an amount not to exceed ONE HUNDRED FIFTY-FIVE THOUSAND FIVE HUNDRED TWENTY AND NO1100 DOLLARS ($155,520.00) for professional 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 NO1100 DOLLARS ($50,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased or decreased 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 - vote of the City uncil o the City of Baytown this the 2811,day of October, 2021. YT�1 „1 DON CAPE ILLO Mayor ATTEST: G� . ..... -I ,e rQ ANGELA ACKSON, Cityek` APPROVED AS TO FORM: E HORNER, City Attorney RAKaren IIornerlDocumentsTilesTity CouncikOrdinances12021\October 281TerraconPSA4BaytownSafetyFacilityProjectPliaseIA.doex Exhibit"A" AGREEMENT FOR CONSULTING SERVICES STATE OF TEXAS COUNTY OF HARRIS This Agreement (this "Agreement") entered into by and between Terracon Consultants, lnc.(hereinafter"Consultant")and the City of Baytown,a home-rule municipality located in Harris and Chambers C OL111ties. Texas(the "City"). i. Scope of Services/Consultant Fees This Agreement authorizes Consultant to perform construction material testing services for Public Safety Building P1.1. i (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 ONE 11UNDRF1 l71FTY-FIVE THOUSAND FIVE HUNDRED TWENTYAND 00/100 DOLLARS ($155.20.00). 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 a. The City shall pay Consultant in installments based upon monthly progress reports and detailed invoices submitted by the Consultant based upon the following: I. Design Phase Services(Lump Sum)...........................................................$0.00 `'. Bid Phase Services(Hourly Not to Exceed)...............................................$0.00 . Construction Phase Services(Hourly Not to Exceed).....................$155,520.00 4. Additional Services (Lump Sum)..............................................................$0.00 [These services require independent and specific advance. written authorization) 5. Reimbursable Expenses(Not to Exceed)....................................................$0.00 6. Total................................................................................................$155,520.00 b. For all agreed contract amount identified as "Lump Sum," "Not to Exceed" and "Reimbursable," Consultant sliall 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. {I) Allowable reimbursable Expenses include: (a) Hard copy reproductions. copies, and/or binding costs; (b) Postage; (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; A_�rccment lbr CcinsuItin�i Services.Page I (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 ftom 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. (?) Disallowed Expenses include travel expenses for professional expertise traveling into the Greater Houston Area from Consultant's office outside the Greater Houston Area. d. C'omsultant 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 !or services or expenses that were incurred more than sixty (60) days before the date of flee invoice. Failure to timely invoice the City for services or expenses shall result in Consultant's invoice being denied. e. 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. 3. Personnel of Consultant U. Consultant's Project Manager C ojisultant shall designate Nooslia Smith. 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/Engincers Consultant sliall keep a full-time registered architects and/or engineers licensed in the State of Texas on stag 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. d. Rejection of Consultant's Employees Hie City reserves the right to approve or rq}ect from the Work any employees of Consultant. Agreement IL%Professional Services,Page 2 4. Designation and Duties of the City's Representative a. 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 hest efforts to provide nonconfidentia) 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 o l'the documents so provided. Notwithstanding the foregoing, Professional shall lie 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 f Ormat in which the existing data and documentation will be provided shall be at the sole discretion of the City. 5. Standards of Performance a. Consultant shall perform all services under this Agreement with the care and skill 01-dinarily used by members of Consultants profession practcing under the same or similar circumstances, time and locality. Opinion of probable cost shall be based upon the Consultant's experience and represents its professional judgment 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. t�) All materials specified on any City project shall be in accordance with City, A S"1'M. ACL 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 Aureement for pro6essional Services,gage i years of proven experience in the field.and such satisfactory documentation has been approved by the City's Representative. c 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. (S) 1-he 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. (0) 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 persontrel 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-guilt" 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. (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 soflware versions used steal I be compatible to current City standards. Other support documents for example structural calculations, drainage reports and geotechnical AL,reeme iit tier Pr0essiema)Services,Page 4 reports, shall be submitted in hard copy only. All Record Drawings electronic files shall be submitted to the City in PDF/TIF format. G. Schedule Consultant shall not proceed with the Work or any stage thereof until written notice to proceed is provided by the C'ity's Representative. Consultant's obligation to render services specified in Exhibit Q will be fur 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 rind shall not he 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 al Instruments of Service. With such ownership interest,it is expressly understood by the parties hereto that the Cite may use the Instruments of Service for any purposes which the C'ity sees tit,ineltiding. but not limited to,subsequent construction,reconstruction,alteration.and/or repairs ol'the Frcaject. 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 am' and all claims which the City could make arising out of or in connection with any rVusc of the(10CLIments by the City. K. Insurance C 011SUI Ilt 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 fi-Mil or in connection with the performance of the Work hereunder by Consultant. its agents. representatives. volunteers,employees or subconsultants. 11. C'011sultant'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 COI1SUltant'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 m i ni niu n coverage amounts required in this Agreement: I. Commercial General Liability ® General Aggregate: $2,000,000 ll Products& Completed Operations Aggregate: $2.000.000 ® Personal& Advertising injury: $1.000.000 © Per Occurrence: $1,000.000 A!zreenient ti)r t?ro6essiornal Services. Page 5 Im Fire Damage $500,000 ® Waiver of Subrogation required. 0 Coverage shall be broad torn. ® No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. �. 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. 4. Workers' Compensation ® Statutory Limits ® Fmployer's Liability$500,000 0 Waiver of Subrogation required. h. The following shall he applicable to all policies of insurance required herein. l. Insurance carrier for all liability policies must have an A.M. Best Rating of A:VIII or better. ?. Only insurance carriers licensed and admitted to do business in the State of 'Texas will be accepted. Liability policies inust 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 riven to the City. �. 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. A�reei��ei�[ lOr Professional Services. Page 6 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. K. 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 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 I N FRI NG EMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE PROFESSIONAL OR THE i 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 TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS 11 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 A.t e:ement I'm-Prolessional_Services, Page 7 IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY1 PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVI{,NT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO1 I)EFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL j 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 low. Nothing herein shall be construed so as to limit or waive the City's sovereign hnmunit-. 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 tilt: parties hereto, their employees, or other third parties) that is Caused by or alleged to he 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 NN hole or in part by insurance. 10. Subcontractors and Subconsultants ('c}rtyulitunt slIall receit•e written approval oi' the City's Representative prior to the use of any SUI)COntractors or SUbconsultants. A coPy of all proposed contracts with subconsultants and/or suhcoMractOrs Shull be given to the City before execution of such contracts. 11. "Termination of Consultant Tlie 01%,. besides all other Ilghts of 1'emedles It may have. shall have the right to terminate this /\urcenlcnt "vithout cause upon written notice fi-om the City Manager to Consultant of the City's election to clo set. Furthermore, tine City may immediately and without notice terminate this - (li'eentcrrt if C'011Sultant breaches this Agreement. A breach of this Agreement shall include. but not be limited to. the following: W) failing to pay insurance premiums. liens. claims or other charges: t h t 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; tc) the Institution of voluntary or involuntary bankruptcy proceeding against Consultant: (d) the dissolution of Consultant: A`rocine-nt tier Professional Services, Paoe 8 (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 (�.►) 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 file notice oftermination.Consultant shall subn-dt 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, lield survey notes, reports. estimates, and any and all other dOcumetlts 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 he made until all such instruments of service and materials supplied are so tcndered. H:this Agreement is terminated for cause. Consultant shall be liable for any damage to the City resulting dierelt-one. 'Phis liability includes any increased costs incurred by the City in completing C onsultaw'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 tell (lays ol'tile City's request and at no cost to the City, the City will be entitled to review and receive a eery of all documents that indicate work on the Project that is subject to this Aureement. 13. Supervision of Consultant Co>sultant 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 ilwoices 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, taut the undisputed portion will be paid. Consultant shall invoice the City for work performed no more than once a month and may not invoice the City for work not performed. invoices shall he received by the City no later than sixty calendar(60)days from the date Consultant and/or its scihconsultants perform the services or incur the expense. Failure by Consultant to comply %vith this rc gUiretnent shall result in Consultant's invoice being denied and the City being relieved from any liahility for payment of the late invoice. Aareement for Prol'ssinnal_Service .Page 9 15. Indebtedness. If C'011sultant.at any time during the tenn of this Agreement,incurs a debt,as the word is defined in section 2-662 ofthe 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 C olISURUM htrs incurred a debt,the City's Director of Finance shall immediately notify Consultant its writing. I I'C onsuitant does not pay the debt within 30 days of either such notification.the City's Director c4 hinance 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. Cc?itsUILant 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 other-X ise 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 It. 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 vears 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 cal'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. h. 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. 19. Governing Law 1*his Agi-c:emem has been made under and shall be governed by the laws of the state of Texas. The parties furdie:r auree that performance and all matters related thereto shall be in Harris County, Texas. A,recinenr for Prol'ssional Services. Page 10 20. Notiecs i Inless otherwise provided in this Agreement, any notice provided for or permitted to be given 111115t he in writing and delivered in person or by depositing saine in the United States mail,postpaid and registered or certified,and addressed to the party to be notified, with return receipt requested. ()r deli\ering 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 alter the expiration of three (3)days after it is so deposited. For the pi11-llose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For the City: CITY OF BAYTOWN Attn: City Manager P. 0. Box 424 Baytown, "Texas 77522-0424 For('ollsultallt: 1'erracon Consultants. Inc. Attn: Noosha Smith 551 League City Parkway, Ste. F League City.TX 77573 Leach 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 frol=essional 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 Not%vithstandino anything to the contrary contained in this Agreement, the City and Consultant llerebt.agree that no claim or dispute between the City and Consultant arising out of or relating to this A-recnlent shall be decided by any arbitration proceeding including, without limitation, any proceeding undel- the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitrat1*011 staiule. 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 he 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. Agreement t6r Professional Services.Page I 1 23. Wai'ver No waiver by either party to this Agreement of any term or condition of this Agreement shall be deenied or construed to be a waiver of any other term or condition or subsequent waiver of the tiame term car 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 b\ written instrument approved and executed by both of the parties. The City and C'011sultant :accept and agree to these terms. 25N. No Assihnment Consultant nim: not sell or assign all or part interest in this Agreement to another party or parties xv-1thout the: prier express written approval of the City Manager of such sale or assignment. The Cite may require any records or financial statements necessary in its opinion to ensure such sale ur assi�_nment � ill 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 significanee. 27. Severability All parties agree that should any provision of this Agreement be determined to be invalid or unenforceablc. 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 am ambiguity in any of the terms of this Agreement, it shall not be construed for ur 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 bill 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 , 2021. the date of execution by the City Mana_aler of the City of BaytoKm. CITY OF BAYTOWN RICHARD L. DAVIS. City Manager Agreenunt for.Prol'essional Services. Page 12 EXHIBIT "A" SCOPE OF SERVICES Terracon will provide the following scope of services when scheduled by the Contractor or the City's representative: 1. Earthwork: 0 Observe and document proof rolling operations for pavement and building subgrade. o Sample subgrade, backfill, select fill, and treated material. Prepare and test the samples for classification by the Atterberg Limits,moisture density relationship, and - 200 sieve analysis. ® Obtain samples of select fill during building pad placement to test Atterberg Limits. Samples typically require two (2) working days for processing and testing in accordance with ASTM Standards, however, preliminary test results can be obtained within one (1) working day. it will be at the discretion of the contractor to suspend placement of fill before test results are known. o Obtain samples of native subgrade for lime determination. a Perform on site gradation tests after final mix of lime stabilized subgrade. ® Perform field density tests using the nuclear method to determine the moisture content and percent compaction of the soils. 2. Drilled and Under-reamed Foundation System: ® Observe the installation of the drilled under-reamed footing foundations. For each pier observed, information regarding shaft depth, auger diameter, and chained belling tool diameter will be documented. The chained belling tool diameter will be measured when extended above ground for each bell size. ® Record dimensions and the number, size, and length of vertical reinforcing bars used for footings. 13 Obtain pocket penetrometer readings on soil cuttings removed during excavation at or near the bearing stratum to document the approximate shear strength of the soil. 0 Sample the fresh concrete placed in footings and perform required tests, including slurTnp, air content, concrete temperature, and cast test specimens during placements 3. Cast-In-Place Concrete(structures): 10 Sample the fresh concrete, perform required tests, including slump, air content, concrete terperature, and cast test specimens during placements. ® Perform compressive tests of concrete test cylinders cast In the field. ® Terracon understands that the contractor will be responsible for maintaining the initial curing temperature of the concrete test specimens. Terracon will record the initial curing temperatures only when curing boxes are provided by the contractor. 4. Concrete (paving and misc. civil): ® Sample the fresh concrete, perform required tests, including slump, air content, concrete temperature, and cast test specimens during placements. e Perform compressive tests of concrete test cylinders cast in the field. ® Terracon understands that the contractor will be responsible for maintaining the initial curing temperature of the concrete test specimens. Terracon will record the initial curing temperatures only when curing boxes are provided by the contractor. 5. Asphalt Pavement: o Sample asphalt materials during placement, prepare, and test the samples for lab series which include: asphalt content, gradation, bulk specific gravity of lab molded specimens.. theoretical maximum specific gravity,and Nveem stability. Perform in-situ nuclear density tests to assist in determining an asphalt rolling pattern. ® Perform in-situ nuclear density tests to determine the relative percent compaction of the asphalt at the frequency specified. 6. Welded and Bolted Framing Connections: ® Provide a certified welding inspector (CWi) at the job site to observe field welding procedures and visually check bolted/welded connections in accordance with applicable A1SC and AWS specifications and Contract Documents. The approved Shop Drawings will be required for this inspection. 7. Project Management: Terracon will assign a project manager to this project, working directly with Ms. Noosha Smith, PE. The project manager will serve as the daily contact for the Project Team. The Project manager's responsibilities include: ® Assigning and managing the technician(s)on site. o Coordinating field and laboratory testing. o Communicating with Terracon Engineering Technicians, Contractors, and Owner's site representative. ® Reviewing laboratory and field test reports and submitting reports to the City approved distribution list. ® Monitoring our budget. track cost due to retests and cancellations, and invoice, monthly. EXHIBIT "B" EWEL OF EFFORT Service Quanti Unit Unit Rate Estimate Estimate 30 weeks and 50 hours/week Engineering Technician (includes vehicle, field equipment, and field testing) 1200 hour $ 60.00 $ 72,000.00 Engineering Technician, OT 300 hour $ 60.00 $ 18,000.00 Certified Wedding Inspector 160 hours $ 110.00 $ 17,600.00 sub-total $ 107,600.00 2.0 Laboratory Moisture Density Relationship (native and import) 10 each $ 185,00 $ 1,850.00 Atterberg Limits for proctors 10 each $ 70.00 $ 700.00 Atterberg Limits for select fill verification 27 each $ 70.0_0 $ 1,890.00 -200 Sieve analysis 10 each $ 70.00 $ 700.00 Lime Determination 2 _each _$ 450.00 $ 900.06 Cylinder Tests (4 cyl/set ) 360 each $ 18.00 $ 6,480.006 sub-total $ 12,520.00 3.0 Project Manager(meetings, reports, consulting) 150 hour $ 125.00 $ 18,750.00 Administrative/Clerical 150 hour $ 72.06 $ 10,800.00 Project Engineer, P.E. (meetings and consulting) 30 hour $ 195.00 $ 5,850.00 sub-total $ 35,400.00 Total $ 155,520.00 EXHIBIT "C" SCHEDULE Field testing_ services will be provided on a call-out basis when scheduled by the City's represemative. A minimum 24-hours' notice is required to schedule Consultant services,although Consultant will attempt to meet requests in a short timeframe. Consultant shall perform services throughout and until completion and acceptance by the City Council of all work associates with the project. AJITs r. AN(iEI.A JACKSON.Interim City Clerk APPROVED AS TO FORM: KAREN L. IIORNER.City Attorney CONSULTANT: Terracon Consultants.Inc. (Company Name) KNMYGRMW ti9af, EON> f6,2026 (Signature) Nooslp, 5mi-141 p� . (Printed Name) !\ i2 Lille MMA-JL, (Title) IJ S'rATE OF TEXAS § § COUNTY OP HARRIS § / Before me on this av personally appeared 0'641 in his/her capacity as � •v+r`( ✓ of.. Terracon Consultants. Inc.. on behalf of such corporation/other. T� [� 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 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. ifs+ SUBSCRIBED AND SWORN before me this day of OC.A0 of.20-.I Not Public in for a State xas l IID14)I lepl Avm nb{iep.cs.vF F.npvmivY ApanrnrvFanm 1J!U•ApufRfY Agreement forL'LofesiiiyMj�SSr jW.page 13 Denise.Swaim From: Katie.Eapen Sent: Friday, October 22, 2021 12:38 PM To: Denise.Swaim Subject: RE:Question = Sick leave used for immediate family Hey lady, The 5 days of emergency sick leave would come out of the employee's accrued sick leave balance, so it isn't extra time, but it allows us to use some of our sick leave accruals to care for a family member, rather than having to take our vacation time. Did that answer your question? Thank you!! Katie From: Denise.Swaim Sent: Friday, October 22, 2021 9:47 AM To: Katie.Eapen <Katie.Eapen @ baytown.org> Subject: RE: Question =Sick leave used for immediate family Hi Katie! This is a follow-up question regarding this: Are the 5-days considered part of the 'normal'sick time or are they'above/apart' from that? Thank you, Denise Swaim Sr. Legal Assistant CITY OF BAYTowN*TEXAS 2401 Market Street Baytown,Texas 77520 www.baytown.org Direct:281-420-6505 FAX: 281-420-6586 BAYTOWN Together We Enrich Lives&Build Community 1