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Ordinance No. 9,884ORDINANCE NO. 9884 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING ADDENDUM NO. 3 TO THE PROFESSIONAL CONSULTANT SERVICES CONTRACT BETWEEN THE CITY OF BAYTOWN AND LARSON DESIGN GROUP, INC., DB /A LARSONBURNS, INC., FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE DEVELOPMENT OF THE GOOSE CREEK STREAM GREENBELT PROJECT, PHASE III; AUTHORIZING PAYMENT IN THE AMOUNT NOT TO EXCEED THIRTEEN THOUSAND EIGHT HUNDRED AND NO /100 DOLLARS ($13,800.00); 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 l: That the City Council of the City of Baytown, Texas, hereby authorizes the execution of Addendum No. 3 to the Professional Consultant Services Contract between the City of Baytown and Larson Design Group, Inc., d/b /a Larson/Bums, Inc., for construction management services for the development of the Goose Creek Stream Greenbelt Project, Phase III. A copy of said Addendum 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 Larson Design Group, Inc., d/b /a Larson/Bums, Inc., in an amount not to exceed THIRTEEN THOUSAND EIGHT HUNDRED AND NO/] 00 DOLLARS ($13,800.00). Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 23'd day of September, 2004. CALVIN MUNDINGER, Mayor ATTEST: 4 z, 0 GAR Xd SMITH, City Clerk APPROVED AS TO FORM: d&XACIO RAMIREZ, SR., Attorney \ \Bdc2 \litigation \Karen \Files \City Council\ Ordinances\ LarsonBurnsAddendumNo3Ordinance .doc • ADDENDUM NO.3 TO THE PROFESSIONAL CONSULTANT SERVICES CONTRACT BY AND BETWEEN THE CITY OF BAYTOWN AND LARSON DESIGN GROUP, INC. STATE OF TEXAS § COUNTY OF HARRIS § This Addendum No. 3 to the Professional Consultant Services Contract ( "Addendum No. 3 ") between the City of Baytown and Larson Design Group, Inc., dated June 16, 1997, and amended on September 15, 1999, and on May 28, 2003, is made by and between the same parties on the date hereinafter last specified. WITNESSETH: WHEREAS, the City of Baytown ( "Owner ") and Larson Design Group, Inc., d/b /a Larson/Bums, Inc., ( "Consultant ") did enter into a Professional Consultant Services Contract, on June 16, 1997 ( "Agreement "); and WHEREAS, such Agreement was amended on the 15`h day of September, 1999, via an Addendum (the "Addendum No. I"); and WHEREAS, such Agreement was amended on the 281h day of May, 2003, via an Addendum (the "Addendum No. 2 "); and WHEREAS, the Agreement was authorized, in part, for the preparation of plans and specifications for the construction of a 9,000 linear foot, ten foot wide, multi- purpose bicycle and pedestrian trail along the shores of Goose Creek Stream with the goal of providing upon completion, a non - motorized transportation option for bicyclists and pedestrians who reside within, visit, or travel through the City of Baytown; and WHEREAS, upon completion of construction, the project will connect Phase I of the Goose Creek Stream Greenbelt at West Texas Avenue with Phase II of the same at Arizona Street; and WHEREAS, the Owner desires additional services as detailed in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, to be performed under the terms and conditions as specified in the Agreement; and WHEREAS, these additional services are necessary to complete the Project; and WHEREAS, the Consultant wishes to perform such services under such terms and conditions as contained in the Agreement and Addenda at a cost not to exceed THIRTEEN THOUSAND EIGHT HUNDRED AND NO/] 00 DOLLARS ($13,800.00); . NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually agree as follows: Addendum, Page 1 EMIT A • I. Definitions • Unless a different meaning clearly appears from the context, words and phrases as used in this Addendum shall have the same meanings as in the Agreement and the terms and conditions specified therein shall control. II. Services and Compensation The Owner and the Consultant agree that the Consultant shall provide as additional services those items listed on Exhibit "A" at a cost, including all reimbursable expenses and subconsultant fees, not to exceed THIRTEEN THOUSAND EIGHT HUNDRED AND NO 1100 DOLLARS ($13,800.00), as detailed in such exhibit. III. Miscellaneous 3.01 Interpretation. This Addendum No. 3 has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this Addendum No. 3. 3.02 Captions. Captions contained in this Addendum No. 3 are for reference only and, therefore, have no effect in construing this Addendum No. 3. The captions are not restrictive of the subject matter of any section in this Addendum No. 3. 3.03 No Waiver. By this Agreement, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of this Addendum No. 3, the Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be constructed so as to limit or waive the Owner's sovereign immunity. 3.04 Construction. The provisions of this Addendum and the provisions of the Agreement, Addendum No. 1, and Addendum No. 2 should be read together and construed as one agreement, for this addendum is meant to supplement but not replace any provision in the Agreement, Addendum No. 1, or Addendum No. 2. 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 September, 2004. Addendum, Page 2 CITY OF BAYTOWN GARY JACKSON, City Manager 0 ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: e. " ACIO RAMIREZ, SR., Attorney LARSON DESIGN GROUP, INC., DB /A LARSON /BURNS, INC. By: BRIAN LARSON, President STATE OF TEXAS § COUNTY OF § Before me, , the undersigned notary public, on this day personally appeared Brian Larson, in his capacity as President of Larson Design Group, Inc., d/b /a Larson/Bums, Inc., on behalf of such corporation, 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} (check 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 12004. Notary Public in and for the State of Texas My commission expires: 1\Bdc2l litigation \Karen\FileslContracts\Larson Bumsl 3rd Addend um2 Agreement. LarsonBums.doc Addendum, Page 3 • Exhibit "A" Construction Phase Services A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, CONSULTANT shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. All of OWNER's instructions to Contractor will be issued through CONSULTANT, 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. Pre - Construction Conference. Participate in a Pre - Construction Conference prior to commencement of Work at the Site. 3. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. Make visits to the Site at intervals appropri ate to the various stages of construction, appropriate to verify Contractor's payment requests, and as CONSULTANT 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, CONSULTANT will determine if Contractor's work is proceeding in accordance with the Contract Documents, and CONSULTANT shall keep OWNER informed of the progress of the Work. b. The purpose of CONSULTANT's visits to the Site, will be to enable CONSULTANT to better carry out the duties and responsibilities assigned to and undertaken by CONSULTANT during the Construction Phase, and, in addition, by the exercise of CONSULTANT'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. CONSULTANT shall not, during Exhibit "A," Page I ® 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 CONSULTANT 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 furnishing and performing the Work. Accordingly, CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, CONSULTANT 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. Clarifications and Interpretations; 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. CONSULTANT may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work 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 Drawings 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. CONSULTANT has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to CONSULTANT. 10. Substitutes 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. 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 Exhibit "A," Page 2 ® Documents. CONSULTANT'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. CONSULTANT shall be entitled to rely on the results of such tests. 12. Disagreements between OWNER and Contractor. 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 Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on CONSULTANT'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 CONSULTANT recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute CONSULTANT's representation to OWNER, based on such observations and review, that, to the best of CONSULTANT'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 insofar as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price work, CONSULTANT'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). b. By recommending any payment, CONSULTANT shall not thereby be deemed to have represented that observations made by CONSULTANT 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 CONSULTANT in this Agreement and the Contract Documents. Neither CONSULTANT's review of Contractor's work for the purposes of recommending payments nor CONSULTANT's recommendation of any payment including final payment will impose on CONSULTANT 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 Exhibit "A," Page 3 • with Laws and Regulations applicable to Contractor's furnishing and performing the Work. it will also not impose responsibility on CONSULTANT to make any examination to ascertain how or for what purposes Contractor has used the monies 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. • 14. Contractor's Completion Documents. a. Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Consultant will compile this information as provided by Contractor and deliver three (3) copies of the same to OWNER. b. 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, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. 15, Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, CONSULTANT considers the Work Substantially Complete, CONSULTANT shall deliver a certificate of Substantial Completion to OWNER and Contractor. 17. Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of CONSULTANT's knowledge, information and belief and upon the exercise of due diligence the Work complies with the Contract Documents, the Work is acceptable and is in compliance with the Contract Documents. Exhibit "A," Page 4 B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon written recommendation by CONSULTANT for final payment to Contractors. C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. Compensation for Construction Phase Services Service Hours Price/Hour Extended Price Price Nat -to- Exceed Preconstruction meeting 8 $100 $ 800.00 Shop Drawing Review 30 100 $ 3,000.00 Review project field changes and prepare field change drawings and sketches as required 70 100 $ 7,000.00 Three Field Visits 24 100 $ 2,400.00 Three meetings with TxDOT or the City 6 100 $ 600.00 TOTAL $13,800.00 ® \ \Bdc2\ liti gat ion \KarenTiles \Contracts\Larson BumslUrdAddendum2Agreement .LarsonBums.doc Exhibit "A," Page 5 ADDENDUM NO.3 TO THE PROFESSIONAL CONSULTANT SERVICES CONTRACT BY AND BETWEEN THE CITY OF BAYTOWN AND LARSON DESIGN GROUP,INC. STATE OF TEXAS COUNTY OF HARRIS This Addendum No. 3 to the Professional Consultant Services Contract ("Addendum No. 3") between the City of Baytown and Larson Design Group, Inc., dated June 16, 1997, and amended on September 15, 1999, and on May 28, 2003, is made by and between the same parties on the date hereinafter last specified. WITNESSETH: WHEREAS,the City of Baytown("Owner")and Larson Design Group, Inc.,d/b/a Larson/Bums, Inc., ("Consultant") did enter into a Professional Consultant Services Contract, on June 16, 1997 Agreement");and WHEREAS, such Agreement was amended on the 151h day of September, 1999, via an Addendum(the"Addendum No. I");and WHEREAS, such Agreement was amended on the 28"'day of May,2003,via an Addendum(the Addendum No.2");and WHEREAS, the Agreement was authorized, in part, for the preparation of plans and specifications for the construction of a 9,000 linear foot, ten foot wide, multi-purpose bicycle and pedestrian trail along the shores of Goose Creek Stream with the goal of providing upon completion, a non-motorized transportation option for bicyclists and pedestrians who reside within, visit, or travel through the City of Baytown;and WHEREAS, upon completion of construction, the project will connect Phase I of the Goose Creek Stream Greenbelt at West Texas Avenue with Phase II of the same at Arizona Street;and WHEREAS, the Owner desires additional services as detailed in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, to be performed under the terms and conditions as specified in the Agreement;and WHEREAS,these additional services are necessary to complete the Project;and WHEREAS,the Consultant wishes to perform such services under such terms and conditions as contained in the Agreement and Addenda at a cost not to exceed THIRTEEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS($13,800.00); NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained,the parties hereto do hereby mutually agree as follows: Addendum,Page 1 I. Definitions Unless a different meaning clearly appears from the context, words and phrases as used in this Addendum shall have the same meanings as in the Agreement and the terms and conditions specified therein shall control. II. Services and Compensation The Owner and the Consultant agree that the Consultant shall provide as additional services those items listed on Exhibit "A" at a cost, including all reimbursable expenses and subconsultant fees, not to exceed THIRTEEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($13,800.00), as detailed in such exhibit. III. Miscellaneous 3.01 Interpretation. This Addendum No. 3 has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this Addendum No.3. 3.02 Captions. Captions contained in this Addendum No. 3 are for reference only and,therefore,have no effect in construing this Addendum No. 3. The captions are not restrictive of the subject matter of any section in this Addendum No. 3. 3.03 No Waiver. By this Agreement, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of this Addendum No. 3, the Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be constructed so as to limit or waive the Owner's sovereign immunity. 3.04 Construction. The provisions of this Addendum and the provisions of the Agreement,Addendum No. 1, and Addendum No. 2 should be read together and construed as one agreement, for this addendum is meant to supplement but not replace any provision in the Agreement, Addendum No. 1,or Addendum No.2. 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 A 6.day of September,2004. CITY OF BAYTOW By: 'zj"L-41 GARY JA%Qr1k1S11N,City Manager Addendum,Page 2 ATTEST: G W. SMITH,City Clerk APPROVED AS TO FORM: 161 ACIO RAMIREZ, SR.,C' Attorney LARSON DESIGN GROUP,INC.,D/B/A LARSON/BURNS,INC. By:6, ,- BRIAN LARSO ,President STATE OF TEXAS COUNTY OF a yr s § MOO- rRN 1.k'rjaxl Before me, the undersigned notary public, on this day personally appeared Brian Larson, in is capacity as President of Larson Design Group, Inc., d/b/a Larson/Bums, Inc.,on behalf of such corporation, 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) check 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. 0 day of 2004. MaryAnn Carmona N0 SWOofTexas Notary Public in ffor the State of Texas u952EOM My commission expires: O Bdc2\litigation\Karen\Files\Contracts\arson Bums\3rdAddendum2Agreement.LarsonBurns.doc Addendum,Page 3 Exhibit "A" Construction Phase Services A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER,CONSULTANT shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. All of OWNER's instructions to Contractor will be issued through CONSULTANT, 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. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement of Work at the Site. 3. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as CONSULTANT 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, CONSULTANT will determine if Contractor's work is proceeding in accordance with the Contract Documents, and CONSULTANT shall keep OWNER informed of the progress of the Work. b. The purpose of CONSULTANT's visits to the Site, will be to enable CONSULTANT to better carry out the duties and responsibilities assigned to and undertaken by CONSULTANT during the Construction Phase, and, in addition, by the exercise of CONSULTANT'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. CONSULTANT shall not, during Exhibit"A,"Page 1 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 CONSULTANT 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 furnishing and performing the Work. Accordingly, CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, CONSULTANT 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. Clarifications and Interpretations;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. CONSULTANT may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work 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 Drawings 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. CONSULTANT has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to CONSULTANT. 10. Substitutes 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. 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 Exhibit"A,"Page 2 Documents. CONSULTANT'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. CONSULTANT shall be entitled to rely on the results of such tests. 12. Disagreements between OWNER and Contractor. 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 Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on CONSULTANT'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 CONSULTANT recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute CONSULTANT's representation to OWNER, based on such observations and review, that, to the best of CONSULTANT'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 insofar as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price work, CONSULTANT'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). b. By recommending any payment, CONSULTANT shall not thereby be deemed to have represented that observations made by CONSULTANT 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 CONSULTANT in this Agreement and the Contract Documents. Neither CONSULTANT's review of Contractor's work for the purposes of recommending payments nor CONSULTANT's recommendation of any payment including final payment will impose on CONSULTANT 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 Exhibit A. Page 3 with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on CONSULTANT to make any examination to ascertain how or for what purposes Contractor has used the monies 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. 14. Contractors Completion Documents. a. Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Consultant will compile this information as provided by Contractor and deliver three(3)copies of the same to OWNER. b. 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,and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. 15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, CONSULTANT considers the Work Substantially Complete, CONSULTANT shall deliver a certificate of Substantial Completion to OWNER and Contractor. 17. Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to the best of CONSULTANT's knowledge, information and belief and upon the exercise of due diligence the Work complies with the Contract Documents, the Work is acceptable and is in compliance with the Contract Documents. Exhibit"A,"Page 4 B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon written recommendation by CONSULTANT for final payment to Contractors. C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. Compensation for Construction Phase Services Service Hours Price/Hour Extended Price Price Not-to-Exceed Preconstruction meeting 8 100 800.00 Shop Drawing Review 30 100 3,000.00 Review project field changes and prepare field 70 100 7,000.00 change drawings and sketches as required Three Field Visits 24 100 2,400.00 Three meetings with TxDOT or the City 6 100 600.00 TOTAL 13,800.00 Bdc2\litigation\Karen\Files\Contracts\Larson Bums\3rdAddendum2Agreement.LarsonBums.doc Exhibit"A,"Page 5