Ordinance No. 13,136 ORDINANCE NO. 13,136
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE NINTH AMENDMENT TO THE STANDARD FORM OF
AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES, INC., DATED
JANUARY 26, 2007, AND AMENDED ON OCTOBER 23, 2007,JANUARY 18,2008,
OCTOBER 12, 2009, MARCH 16, 2010, J[JNE 6, 2012, OCTOBER 1, 2012,
DECEMBER 4, 2013, AND NOVEMBER 17, 2015, TO PERFORM DESIGN, BID
PHASE AND CONSTRUCTION PHASE SERVICES FOR THE AQUA LOOP
EXPANSION PROJECT AT PIRATES BAY; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN OF AN AMOUNT NOT TO EXCEED ONE HUNDRED
THIRTY-NINE THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS
($139,250.00); 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 the City
Manager to execute and the City Clerk to attest to the Ninth Amendment to the Standard Form of
Agreement with Kimley-Hom and Associates, Inc., dated January 26, 2007, and amended on October 23,
2007, January 18, 2008, October 12, 2009, March 16, 2010, June 6, 2012, October 1, 2012, December 4,
2013,and November 17, 2015,to perform design, bid phase and construction phase services for the Aqua
Loop Expansion Project at Pirates Bay. A copy of the Ninth Amendment is attached hereto as Exhibit
"A"and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Kimley-
Horn and Associates, Inc., in an amount not to exceed ONE HUNDRED THIRTY-NINE THOUSAND
TWO HUNDRED FIFTY AND N0/100 DOLLARS ($139,250.00),pursuant to the Amendment.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) or less; however, the original contract price may not be increased by more than twenty-five
percent(25%)or decreased by more than twenty-five percent(25%)without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect from and after its pa e by the City Council of
the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of t e ity Council of the City of
Baytown this the 25th day of February, 2016.
ST HEN H. DONCARLOS,Mayor
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APPROVED AS TO FORM:
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IdNACIO RAMIREZ, SR. ity Attorney
COBFSOI'•.Legal\Karen\Files'.City Council%Ordinances\2016\Febmary 25 9thAmendmenttoKimley-Hom4AquaLoopExpansion.doc
Exhibit "A"
NINTH AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
This Ninth Amendment ("Ninth Amendment") to the Standard Form of Agreement between the
City of Baytown and Kinley-Horn and Associates, Inc., dated January 26, 2007, and amended on
October 23, 2007, January 18, 2008, October 12, 2009, March 16, 2010, June 6, 2012, October 1, 2012,
December 4, 2013, and November 17, 2015, is made by and between the same parties on the date
hereinafter last specified to authorize the services necessary to for the Aqua Loop Expansion at Pirates
Bay.
WITNESSETH:
WHEREAS, the City of Baytown ("OWNER") and Kimley-Horn and Associates, Inc.,
("ENGINEER") did enter into an Engineering Services Agreement, dated January 26, 2007
("Agreement"); and
WHEREAS, OWNER's City Council approved and adopted the Aquatic Facilities Master Plan
on July 26,2007,as prepared by the ENGINEER; and
WHEREAS, OWNER and ENGINEER entered into the First Amendment to the Agreement on
October 23, 2007, for preliminary design services and programming for two outdoor aquatic facilities at
the Wayne Gray Sports Complex and N.C. Foote Park and one water spray ground at McElroy Park in
accordance with the approved City of Baytown Aquatic Facilities Master Plan (the"First Amendment");
and
WIIEREAS,OWNER and ENGINEER entered into the Second Amendment to the Agreement on
January 18,2008,
1. to finalize the conceptual master plans,programming for two outdoor aquatic facilities at
Wayne Gray Sports Complex and N.C. Foote Park and one water spray ground at
McElroy Park in accordance with the approved City of Baytown Aquatic Facilities
Master Plan; and
2. to prepare completion construction documents, to advertise for bid and to provide
services related to the construction of one new aquatic facility at Wayne Gray Sports
Complex(the"Second Amendment"); and
WHEREAS, OWNER and ENGINEER entered into the Third Amendment to the Agreement on
October 12, 2009, to prepare completion construction documents, to advertise for bids and to provide
services related to the construction of one new aquatic facility at the N.C. Foote Park; and
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 1
WHEREAS, OWNER and ENGINEER entered into the Fourth Amendment to the Agreement on
March 16, 2010, to authorize the ENGINEER to provide additional services regarding the new aquatic
facility at the N.C. Foote Park; and
WHEREAS, OWNER and ENGINEER entered into the Fifth Amendment to the Agreement on
June 6, 2012, to authorize the ENGINEER to prepare a strategic master plan, including options, opinions
of probable cost, and an opinion of financial performance to guide the expansion of the Pirates Bay
Waterpark for the next five to ten years; and
WHEREAS, OWNER and ENGINEER entered into the Sixth Amendment to the Agreement on
October 1, 2012, to authorize the ENGINEER to perform design, bid phase and construction phase
services for the first phase of the expansion of Pirates Bay Waterpark;and
WHEREAS, OWNER and ENGINEER entered into the Seventh Amendment to the Agreement
on December 4, 2013, to authorize the ENGINEER to perform design, bid phase and construction phase
services to enclose the covered patio area of the operations building to create additional lifeguard office
space, including any modifications to the architecture, structural, MEP and HVAC Systems, during the
first phase of the expansion of Pirates Bay Waterpark;and
WHEREAS,OWNER and ENGINEER entered into the Eighth Amendment to the Agreement on
November 17, 2015, to authorize the ENGINEER to perform design, bid phase and construction phase
services to replace the existing pool filtration system at Pirates Bay Waterpark; and
WHEREAS,OWNER now wishes to amend the Agreement again to authorize the ENGINEER to
perform design, bid phase and construction phase services for the Aqua Loop Expansion Pirates Bay
Waterpark; and
WHEREAS,ENGINEER desires to perform such services on behalf of OWNER;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this Ninth Amendment shall have the same meanings as in the Agreement and the First,
Second,Third,Fourth,Fifth, Sixth, Seventh,and Eighth Amendments.
2. Amendments. The amendments specified in this Ninth Amendment shall be particular to the
Aqua Loop Expansion at Pirates Bay Waterpark and are meant to supplement the Agreement,the
First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment,the Sixth Amendment, the Seventh Amendment,and the Eighth Amendment.
a. Article 8 "Exhibits and Special Provisions," Section 8.01 "Exhibits Included" of the
Agreement is hereby amended to read as follows:
ARTICLE 8-EXHIBITS AND SPECIAL PROVISIONS
8.01 Exhibits Included
A. Exhibit A "ENGINEER's Services"
B. Exhibit A-1 "ENGINEER's Services—N.C.Foote Park"
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 2
C. Exhibit A-2 "ENGINEER's Services—Expansion of Pirates Bay"
D. Exhibit A-3 "ENGINEER's Services—Expansion of Pirates Bay—
Phase I"
E. Exhibit A-4 "ENGINEER's Services — Replacement of file Existing
Pool Filtration System at Pirates Bay"
F. Exhibit A-5 "ENGINEER's Services — Aqua Loop Expansion of
Pirates Bay"
G. Exhibit B "OWNER's Responsibilities"
1-1. Exhibit 13-1 "OWNER'S Responsibilities—N.C.Foote Park"
I. Exhibit B-2 "OWNER'S Responsibilities—Expansion of Pirates Bay"
J. Exhibit B-3 "OWNER's Responsibilities—Expansion of Pirates Bay-
Phase I"
K. Exhibit B-4 "OWNER'S Responsibilities — Replacement of the
Existing Pool Filtration System at Pirates Bay"
L. Exhibit B-5 "OWNER'S Responsibilities — Aqua Loop Expansion of
Pirates Bay"
M. Exhibit C "Payments to ENGINEER for Services and Reimbursable
Expenses"
N. Exhibit C-I "Payments to ENGINEER for Services and Reimbursable
Expenses—N.C. Foote Park"
O. Exhibit C-2 "Payment to ENGINEER for Services and Reimbursable
Expenses—Expansion of Pirates Bay"
P. Exhibit C-3 "Payments to ENGINEER for Services and Reimbursable
Expenses—Expansion of Pirates Bay—Phase I"
Q. Exhibit C-4 "Payments to ENGINEER for Services and Reimbursable
Expenses—Replacement of the Existing Pool Filtration
System at Pirates Bay"
R. Exhibit C-5 "Payments to ENGINEER for Services and Reimbursable
Expenses—Aqua Loop Expansion of Pirates Bay"
S. Exhibit D "Duties, Responsibilities and Limitations of Authority of
Resident Project Representative" is not used.
T. Exhibit E "Notice of Acceptability of Work"is not used.
U. Exhibit F "Construction Cost Limit"is not used.
V. Exhibit G "Insurance,"consisting of two(2)pages.
W. Exhibit H "Dispute Resolution"is not used.
X. Exhibit I "Allocation of Risks"is not used.
Y. Exhibit J "Special Provisions"is not used.
Z. Exhibit K "Indemnification"consisting of two(2)pages.
(Added)
b. The Agreement is hereby amended to add Exhibit A-5 "ENGINEER's Services — Aqua
Loop Expansion of Pirates Bay,"which exhibit shall read as follows:
Exhibit A-5
ENGINEER's Services—Aqua Loop Expansion of Pirates Bay
Article 1 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Aqua Loop Expansion of Pirates Bay.
ENGINEER shall provide Basic and Additional Services as set forth below.
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services Page 3
PART I -- BASIC SERVICES(Modified)
A.1.024 Construction Document Phase
A. Upon written authorization from OWNER, ENGINEER shall perform the
following Design Development Phase tasks and/or deliverables:
I. (Modified)Prepare final Plans and specifications for the Work to be performed
and furnished by Contractor. Specifications will be prepared, where
appropriate, in conformance with the 16-division forinat of the ConsU•uction
Specifications Institute or other format agreed to in writing by OWNER and
ENGINEER.
2. Provide technical criteria, written descriptions, and design data as needed for
the OWNER to file applications for permits from or to obtain approvals of
governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations, if any, with
appropriate authorities.
3. Provide to OWNER opinions of probable Construction Cost and Total Project
Costs, with each component separately itemized, including the following:
opinion of allowances for contingencies and for the estimated total costs of
design, professional,and related services provided by ENGINEER and,on the
basis of information furnished by OWNER, allowances for other items and
services included within the definition of Total Project Costs.
4. Perform or provide the following additional Construction Document Phase
tasks and/or deliverables:
Task 1: Coordination and Design Management, which will be
performed throughout the Construction Document Phase:
(1) Review of the survey and geo-technical work.
(2) Assignment of design team responsibilities.
(3) Perform initial due diligence to determine utility services and
OWNER's requirements.
(4) Direct the consulting team during the design phase.
(5) Attend design review meetings with the OWNER to receive continents
on the 100%Construction Documents.
Tnslt 2: Finalize Conceptual Plan and slide Delivery Method, which
will be performed and completed within thirty (30) days of the
issuance of a notice to proceed:
(1) A review of the initial conceptual plan for the project. OWNER will
ftirnish a new topographic survey and geo-technical information to
assist ENGINEER in finalizing the site plan for the project.
Additionally, the location and availability of utilities will be included
in this review.
(2) Preparation and submittal of a final conceptual drawing based on the
prior master plan and initial discussions for review and continent by
OWNER.
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 4
(3) Assist OWNER in determining if the slide and slide installation will
be delivered via a separate design and install project, through the
Texas Buy Board,or part of design/bid/build project.
Task 3: Construction Documents, which will be performed and
completed within ninety (90) days of the issuance of a notice to
proceed:
(1) Prepare final construction plans and specifications (100%
Construction Documents) for the slide addition,slide mechanical area,
and site development.
(2) Provide an opinion of probable cost for the slide and site development
and answer questions regarding estimated cost data.
(3) Provide information on finishes, equipment, lighting, outlets, pool
water supply and waste,structural design,and site utilities.
(d) Meet with OWNER's representatives to present the construction
documents or to review design comments.
(5) finalize the construction documents to reflect changes and continents
determined by consensus after meeting with OWNER's
representatives.
(6) Include the following in the Construction Documents:
a. Engineering Site Plans.
b. Site development plans(layout,grading,water and sanitary sewer,
lighting, power dis(ribution, erosion control, planting and
irrigation,and details).
c. Slide Plans (sections, details, equipment, pumps, filters, and
chemical feed equipment,piping,and foundations).
5. Prepare and furnish Bidding Documents for review and approval by OWNER,
its legal counsel, and other advisors,as appropriate, and assist OWNER in the
preparation of other related documents.
G. (Added) Prepare additional line items in the Bid Tabulations, assuming the
project documentation, including plans and specifications, were originally
prepared to reflect these items,as reasonably requested by OWNER,so long as
thishliese request(s)is made prior to the preparation of the final bid documents.
7. Submit five (5) final copies and one electronic copy in .pdf format of the
Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within ninety(90)days after authorization to proceed with this phase.
B. The number of prime contracts for Work designed or specified by ENGINEER
upon which the ENGINEER's compensation has been established under this
Agreement is one(1).
C. (Modified) ENGINEER's services under the Contract Document Phase will be
considered complete on the date when the submittals required by paragraph
A 1.024.A.7 have been delivered to and accepted by OWNER.
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 5
A.1.034 Bidcling Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent
opinions of probable Construction Cost as detennined in the Construction
Document Phase and upon written aulliorization by OWNER to proceed,
ENGINEER shall for each phase of the Project:
I. Assist OWNER in advertising for and obtaining bids or negotiating proposals
for the Work and, where applicable, provide 5 CD's of complete 100%sets of
plans and specifications.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding
Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and
other individuals and entities proposed by Contractor for those portions of the
Work as to which such acceptability is required by the Bidding Documents.
4. (Modified) If requested by OWNER, attend the Mandatory Pre-Bid
Conferences, prepare Bid tabulation sheets, coordinate the assembly of the
contract documents, assist OWNER in both evaluating Bids or proposals and
awarding contracts for the Work.
5. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating
contracts for construction,materials,equipment,or services.
6. (Added) Prepare bid recommendation letter and answer questions of OWNER
and any bidder during the Bidding Phase.
B. (Modified)The Bidding or Negotiating Phase for each phase of the Project will be
considered complete upon commencement of the Construction Phase.
A.1.044 C'onslrnelion Phase
A. Upon successful completion of the Bidding Phase, and upon written authorization
from OWNER, ENGINEER shall for the Project:
I. General Adminish alion of Conswilclion Conn-act. Consult with OWNER and
act as OWNER's representative as provided in the General Conditions. The
extent and limitations of the duties, responsibilities and authority of
ENGINEER as assigned in said General Conditions shall not be modified,
except as ENGINEER may otherwise agree in writing. All of OWNER's
instructions to Contractor will be issued through ENGINEER, who shall have
authority to act on behalf of OWNER in dealings with Contractor to the extent
provided in this Agreement and said General Conditions except as otherwise
provided in writing.
2. (Modified) Selecting h0ependem Tesling Laboralog. Assist OWNER in the
selection of an independent testing laboratory to perform the services identified
in paragraph B2.01.0, if any.
Ninth Amendment to the Engineering Services Agreement
between 0mier and Engineer for Professional Services,Page 6
3. Pre-Construction Conference. Participate in a Pre-Construction Conference, if
any,prior to commencement of Work at the Site. Provide Five(5) full size sets
of 100%construction plans and specifications (issued for construction sets)to
Contractor and provide one (1) half-size set of 100% construction plans to
OWNER's representative.
4. Baselines and Bendnnarks. As appropriate, indicate on the plans any baselines
and benchmarks for locating the Work which in ENGINEER's judgment are
necessary to enable Contractor to proceed.
5. Visits to Sile anxl Observalion qj Construction. In connection with
observations of Contractor's work in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various
stages of construction, appropriate to verify Contractor's payment
requests,and as ENGINEER and/or OWNER deems necessary, in order to
observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER,
and the Resident Project Representative, if any, are not intended to be
exhaustive or to extend to every aspect of Contractor's work in progress or
to involve detailed inspections of Contractor's work in progress beyond
the responsibilities specifically assigned to ENGINEER in this Agreement
and the Contract Documents, but rather are to be limited to spot checking,
selective sampling, and similar methods of general observation of the
Work based on ENGINEER's exercise of professional judgment as
assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations,
ENGINEER will determine if Contractor's work is proceeding in
accordance with the Contract Documents, and ENGINEER shall keep
OWNER informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by
the Resident Project Representative, if any, at the Site, will be to enable
ENGINEER to better carry out the duties and responsibilities assigned to
and undertaken by ENGINEER during the COnSt'tlCliOn Phase, and, in
addition, by the exercise of ENGINEER's efforts as an experienced and
qualified design professional, to provide for OWNER a greater degree of
confidence that the completed Work will substantially conform to the
Contract Documents and that the integrity of the design concept of the
completed Project as a functioning whole as indicated in the Contract
Documents has been implemented and preserved by Contractor.
ENGINEER shall not,during such visits or as a result of such observations
of Contractor's work in progress, supervise, direct, or have control over
Contractor's work, nor shall ENGINEER have authority over or
responsibility for the means, methods, techniques, sequences, or
procedures of construction selected by Contractor, for safety precautions
and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to
Contractor's ftunishing and performing the Work. Accordingly,
ENGINEER neither guarantees the performance of any Contractor nor
Ninth Amendment to the Engineering Services Agreement
between Owncr and Engineer for Professional Services,Page 7
assumes responsibility for any Contractor's failure to tln•nish and perform
its work in accordance with the Contract Documents.
G. (Modified) Defective ff'ork. Recommend to OWNER that Contractor's work
be disapproved and rejected while it is in progress if, on the basis of such
observations, ENGINEER believes that such work will not produce a
completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed
Project as a functioning whole as indicated in the Contract Documents.
7. Clarifiecrtioju and hrtegpretations; !field Orders. Issue necessary clarifications
and interpretations of the Contract Documents as appropriate to the orderly
completion of Contractor's work. Such clarifications and interpretations will
be consistent with the intent of and reasonably inferable from the Contract
Documents. ENGINEER may issue Field Orders authorizing minor variations
from the requirements of the Contract Documents.
8. Change Orders and 11164 Change Directives. Recommend Change Orders
and Work Change Directives to OWNER, as appropriate, and prepare Change
Orders and Work Change Directives as required.
9. Shop Drmvings and Samples. Review and approve or take other appropriate
action in respect to Shop Drawings and Samples and other data which
Contractor is required to submit, but only for conformance with the
information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in
the Contract Documents. Such reviews and approvals or other action will not
extend to means,methods, techniques,sequences or procedures of construction
or to safety precautions and programs incident thereto. ENGINEER has an
obligation to meet any Contractor's submittal schedule that has earlier been
acceptable to ENGINEER.
10. Substilmes and "or-equal." Evaluate and determine the acceptability of
substitute or"or-equal" materials and equipment proposed by Contractor, but
subject to the provisions of paragraph A2.01 of this Exhibit A-1.
11. Inspections and Tests. Require such special inspections or tests of Contractor's
work as deemed reasonably necessary, and receive and review all certificates
of inspections, tests, and approvals required by Laws and Regulations or the
Contract Documents. ENGINEER's review of such certificates will be for the
purpose of determining that the results certified indicate compliance with the
Contract Documents and will not constitute an independent evaluation that the
content or procedures of such inspections, tests, or approvals comply with the
requirements of the Contract Documents. ENGINEER shall be entitled to rely
on the results of such tests.
12. (Modified) Disagreements between Off-'NCR and Cad-actor. Render formal
written decisions on all claims of OWNER and Contractor relating to the
acceptability of Contractor's work or the interpretation of the requirements of
the Contract Documents pertaining to the execution and progress of
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 8
Contractor's work. In rendering such decisions, ENGINEER shall be fair and
not show partiality to OWNER or Contractor.
13. Applications for Pajmem. Based on ENGINEER's observations as an
experienced and qualified design professional and on review of Applications
for Payment and accompanying supporting documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid.
Such recommendations of payment will be in writing and will constitute
ENGINEER's representation to OWNER, based on such observations and
review, that, to the best of ENGINEER's knowledge, information and
belief,Contractor's work has progressed to the point indicated, the quality
of such work is substantially in accordance with the Contract Documents
(subject to an evaluation of the Work as a functioning whole prior to or
upon Substantial Completion, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications stated in the
recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is
ENGINEER's responsibility to observe Contractor's work. In the case of
unit price work, ENGINEER's recommendations of payment will include
final determinations of quantities and classifications of Contractor's work
(subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph
A 1.042.A.S.a are expressly subject to the limitations set forth in paragraph
A 1.042.A.5.b and other express or general limitations in this Agreement
and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deened
to have represented that observations made by ENGINEER to check the
quality or quantity of Contractor's work as it is performed and furnished
have been exhaustive, extended to every aspect of Contractor's work in
progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to ENGINEER in this Agreement and
the Contract Documents. Neither ENGINEER's review of Contractor's
work for the purposes of recommending payments nor ENGINEER's
recommendation of any payment including final payment will impose on
ENGINEER responsibility to supervise, direct, or control Contractor's
work in progress or for the means, methods, techniques, sequences, or
procedures of construction or safety precautions or programs incident
thereto,or Contractor's compliance with Laws and Regulations applicable
to Contractor's furnishing and performing the Work. It will also not
impose responsibility on ENGINEER to make any examination to
ascertain how or for what purposes Contractor has used the moneys paid
on account of the Contract Price,or to determine that title to any portion of
the work in progress, materials, or equipment has passed to OWNER free
and clear of any liens, claims, security interests, or encumbrances, or that
there may not be other matters at issue between OWNER and Contractor
that might affect the amount that should be paid.
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 9
14. Conn-actm-s Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions,
schedules, and guarantees as prepared by the Contractor in accordance
with the Contract Documents. Engineer will compile this information as
provided by Contractor, and deliver three (3) copies of the same to
OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not
previously submitted and required by the Contract Documents, certificates
of inspection,tests and approvals, Shop Drawings,Samples and other data
approved as provided under paragraph A 1.042.A.9, and the annotated
record documents which are to be assembled by Contractor in accordance
with the Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph
A 1.042.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days
of receipt of documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings showing
appropriate record information based on Project annotated record
documents received from Contractor.
e. (Added) Assist Owner in coordinating the final ADA inspection and
provide assistance to the OWNER as necessary for project compliance.
15. (Modified) final Notice o/'Acceplabililp of the !Pork. Conduct a final
inspection to determine if the completed Work of Contractor is acceptable so
(hat ENGINEER may recommend, in writing, final payment to Contractor.
Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of
Acceptability of Work") that to the best of ENGINEER's knowledge,
information and belief and upon the exercise of ENGINEER'S due diligence,
the Work is acceptable and is in compliance with(he Contract Documents.
16. Attend meetings with OWNER, its representatives and/or contractor as
necessary to ensure the Project is progressing in accordance with the Contract
Documents.
17. Maintain communication (phone, fax, e-mail) for the discussion of questions
and issues as they arise throughout the Project.
18. Document meetings,change orders and responses to requests for information.
19. Provide OWNER with a set of as-buill documents from the Contractor.
B. Dtn•alion of Construction Phase. The Construction Phase will commence with the
execution of the first Construction Agreement for the Project or any pail thereof
and will terminate upon final payment to Contractor. if the Project involves more
Nintl►Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 10
than one prime contract as indicated in paragraph A1.022.13, Construction Phase
services may be rendered at different times in respect to the separate contracts.
C. Limilalion of Responsibilities. ENGINEER shall not be responsible for the acts or
omissions of any Contractor, or of any of its subcontractors, suppliers, or of any
other individual or entity performing or furnishing any of the Work. ENGINEER
shall not be responsible for failure of any Contractor to perform or furnish the
Work in accordance with the Contract Documents.
C. The Agreement is hereby amended to add Exhibit B-5 "OWNER's Responsibilities —
Aqua Loop Expansion of Pirates Bay,"which exhibit shall read as follows:
Exhibit B-5
OWNER's Responsibilities—Aqua Loop Expansion of Pirates Bay
Article 2 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Aqua Loop Expansion of Pirates Bay.
B.2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,
OWNER shall:
A. Provide ENGINEER with all criteria and full inforrnation as to OWNER's
requirements for the Project, including design objectives and constraints, space, capacity
and performance requirements, flexibility, and expandability, and any budgetary
limitations;and furnish copies of all design and construction standards which OWNER will
require to be included in the Drawings and Specifications;and furnish copies of OWNER's
standard forms, conditions, and related documents for ENGINEER to include in the
Bidding Documents,when applicable.
B. Furnish to ENGINEER any other available information pertinent to the
Project including reports and data relative to previous designs, or investigation at or
adjacent to the Site. Nothing contained in this Exhibit or in this Agreement shall be
construed to require the OWNER to provide such records in any certain formal. The
format in which the existing data and documentation will be provided shall be at the sole
discretion of the OWNER. Existing information may include the following:
I. Any existing final plats of the park site.
2. Any boundary or topographic survey information of the Pirate's Bay
Expansion site.
3. Any plans of existing or proposed utilities,parking,and streets within or
adjacent to the site.
C. Furnish to ENGINEER a detailed Topographic/Boundary Survey and
Geotechnical investigation for the Aqua Loop Expansion site at Pirates Bay.
D. Deleted
E. Deleted
F. (Modified)Arrange for access to and make all provisions for ENGINEER
to enter upon public as required for ENGINEER to perform services under the Agreement.
Ninth Amendment to true Engineering Services Agreement
be wcen Owner and Engineer for Professional Services,Page I I
G. Deleted
H. Deleted
I. Deleted
J. Deleted
K. Deleted
L. Deleted
M. Deleted
N. Deleted
d. The Agreement is hereby amended to add C-5, "Payments to Engineer for Services and
Reimbursable Expenses—Aqua Loop Expansion of Pirates Bay," which exhibit shall read
as follows:
Exhibit C-5
Payments to Engineer for Services and Reimbursable Expenses—Aqua Loop Expansion of
Pirates Bay
Article 4 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Aqua Loop Expansion of Pirates Bay:
ARTICLE 4 --PAYMENTS TO THE ENGINEER
C.4.01 For Basic Services Haring A DeterniiAted Scope
A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A-5 as
follows:
I. (Modified) A lump sum cost in the amount of$82,500. This amount does
not include those ENGINEER's Consultant's charges as provided below in
this Article 4, Subparagraph C4.05. The lump sum will be distributed at no
more than once a month at the completion of each of the phases as
determined by the OWNER in the following amounts:
Construction Document Phase $46,000
Coordination and Design Management $ 7,500
Finalize Conceptual Plan $ 3,500
Construction Documents $35,000
Bidding $ 6,500
Construction Services $30,000
2. Deleted
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 12
3. The amount of compensation specified liereinabove includes compensation
for all of ENGINEER's services. Appropriate amounts have been
incorporated in the Lump Sum to account for labor,overhead,and profit.
4. Deleted
5. Deleted
C.4.02 For Basic Services Having An Undelermined Scope--Direcl Labor-Cons Times a
Factor jifelhod of P(.q mein
A. Deleted
C.4.03 Fier Addilional Services
A. Deleted
C.4.04 For Reimbiu-sable Expenses
A. (Modified) When not included in compensation for Basic Services under
paragraph C4.01 of this Exhibit, OWNER shall pay ENGINEER for Reimbursable
Expenses at ENGINEER's direct costs, which may be subject to a multiplier pursuant to
C.4.04.C. Before the OWNER shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the OWNER of any expense that
exceeds $1,000 for which the ENGINEER seeks reimbursement. Reimbursable
Expenses, including the factor referenced in Section C4.04.C, shall not exceed the
following for the Project pertaining to the Aqua Loop Expansion of Pirates Bay, whether
incurred by the ENGINEER or ENGINEER's consultant(s):
a. Travel Expenses $9,000
b. Miscellaneous Expenses(Reproduction,etc.) $ 1,000
B. (Modified) Reimbursable Expenses include the following categories:
mileage, parking, tolls, long distance, reproduction of Drawings, Specifications, Bidding
Documents,and similar Project-related items if authorized in advance by OWNER.
C. "rhe amounts payable to ENGINEER for Reimbursable Expenses will be
the Project-related internal expenses actually incurred or allocated by ENGINEER based
upon ENGINEER'S actual cost plus all invoiced external Reimbursable Expenses
allocable to the Project, the latter multiplied by a Factor of 1.1; provided, however, there
shall be no Factor used for internal costs or travel-related costs.
D. Deleted
E. Deleted
C.4.05 For EA'GhVEER's ConsrrllarFl s Charges
A. Whenever compensation to ENGINEER herein is stated to
include charges of ENGINEER's Consultants,those charges shall be the amounts
billed by ENGINEER's Consultants to ENGINEER times a factor of 1.10. The
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 13
consultant charges shall not exceed the following amounts specified for each of
the following services. The charges include the factor,and are as follows:
Counsilman-Hunsaker....................................................$ 38,500
Engineering Associates....................................................$ 7,150
TheCore Group...............................................................$ 1,100
C.4.06 Direct Labor Costs
Deleted
C.4.07 Fiictors
Deleted
C.4.08 Other Provisions Concerning Pa),nrew
Deleted
3. Entire Agreement. The provisions of this Ninth Amendment, the Eighth Amendment, the
Seventh Amendment, the Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the First Amendment and the Agreement should be
read together and construed as one agreement provided that, in the event of any conflict or
inconsistency between the provisions of this Ninth Amendment and the provisions of the
Agreement and/or the Eighth Amendment, the Seventh Amendment, the Sixth Amendment, Fifth
Amendment, Fourth Amendment, the Third Amendment,the Second Amendment and/or the First
Amendment, the provisions of this Ninth Amendment shall control. Nothing contained in this
Ninth Amendment, the Eighth Amendment, the Seventh Amendment, the Sixth Amendment, the
Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second Amendment, the
First Amendment, or in the Agreement shall be construed in any way to limit or to waive the
City's sovereign immunity.
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 , 2016, the date of execution by the City
Manager.
CITY Or BAYTOWN
By:
ATTEST: RICHARD L. DAVIS,City Manager
LETICIA BRYSCH,City Clerk
APPROVED AS TO FORM:
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services Page 14
IGNACIO RAMIREZ,SR.,City Attorney
KIMLEY-HORN AND ASSOCIATES,IN .
By:
(Signature)
(Printed Name)
-1-4/owr c
(Title)
ATTEST:
(Signature)
sa-k l derwoc
(Printed Name)
(Title)
Ninth Amendment to the Engineering Services Agreement
between Owner and Engineer for Professional Services,Page 15
R\Karen\Fdes\Enginecring\Engineering Agreements\Kimlep-I lom\AyuahcFacihtieshlasterPlanConlracl\NintliAmendmcnt doe
Ninth Amendment to the En ine Services Agreement
between Owner and Engineer for Professional Services,Page 16