Ordinance No. 10,178ORDINANCE NO. 10,178
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE INTERIM CITY CLERK TO ATTEST TO AN AMENDMENT TO THE
PROFESSIONAL SERVICES AGREEMENT WITH PATE ENGINEERS, INC., FOR
THE CONSTRUCTION OF THE NORTHEAST WASTEWATER TREATMENT
PLANT OFFSITE COLLECTION SYSTEM; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN OF AN AMOUNT NOT TO EXCEED SEVEN HUNDRED
EIGHTY -TWO THOUSAND SIX HUNDRED NINETY -FIVE AND NO /100
DOLLARS ($782,695.00); 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 and
directs the City Manager to execute and the Interim City Clerk to attest to an amendment to the
professional services agreement with PATE Engineers, Inc., for the construction of the Northeast
Wastewater Treatment Plant Offsite Collection System. A copy of said Agreement is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment of additional
funds to PATE Engineers, Inc., in an amount not to exceed SEVEN HUNDRED EIGHTY -TWO
THOUSAND SIX HUNDRED NINETY -FIVE AND NO 1100 DOLLARS ($782,695.00) for
engineering services in accordance with the contract.
Section 3: That in addition to the amount specified in Section 2 hereof, 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 13`h day of October, 2005.
L_si� `)_�
CALVIN MUNDINGER, Mayor
T:
P
;KELVIN KNA , Interim City Qlerk
APPROVED AS TO FORM: (/
® 4Z7XACIO RAMIREZ, SR., C40ttorney
R:\Karcn\Filcs\City Council \Orc1 inances1200510cto r 131PATEEnbineersNortheastOrrsiteCollectionsystemrinalDesign .doc
® FIRST AMENDMENT
TO THE
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER
FOR PROFESSIONAL SERVICES
is
STATE OF TEXAS §
COUNTY OF HARRIS §
This First Amendment ( "First Amendment ") to the Standard form of Agreement
between Owner and Engineer for Professional Services between the City of Baytown and
Pate Engineers, Inc., effective August 27, 2004, is made by and between the same parties
on the date hereinafter last specified.
WITNESSETH:
WHEREAS, the City of Baytown ( "Owner ") and Pate Engineers, Inc.
( "Engineer ") did enter into a Standard Form of Agreement between the Owner and
Engineer for Professional Services on August 27, 2004 ( "Agreement ") for preliminary
engineering services in connection with the design of the Northeast Wastewater
Treatment Plant offsite sewer lines along Sjolander, Needlepoint, Archer, Lift Station No.
30 to the plant and Lift Station No. 75 to the plant in the area of Baytown, Texas (the
"Project "); and
WHEREAS, the Engineer has completed the preliminary design phase of the
Project; and
WHEREAS, the City and the Engineer desire to expand the Project to include and
desires to perform additional engineering services for the final design, bidding phase, and
construction phase of the of the Northeast Wastewater Treatment Plant off site sewer lines;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually agree as follows:
I.
Definitions
Unless a different meaning clearly appears from the context, words and phrases as
used in this First Amendment shall have the same meanings as in the Agreement and the
terms and conditions specified therein shall control.
Amendment, Page 1 MU A
• II.
Amendments
The scope of the services to be performed by the ENGINEER is hereby amended
to include the final design of the North East Wastewater Treatment Plant Off -site
Sewers as follows:
OWNER intends to contract for engineering services for final design services by
preparing the construction plans, specifications, and bidding documents for the
North East Wastewater Treatment Plant Off -site Sewers. The sewer lines are to
be located within the Harris County road rights -of -way and easement as identified
in the Preliminary Engineering Report. ENGINEER'S final design services shall
include the design of up to three (3) separate bid packages as follows:
Packalle 1: Gravity Sewers / Waterline
a. Sjolander: Needlepoint to north of IH -10 -- Approximately 1,500 LF of
30 -inch sewer within the existing ROW.
b. Needlepoint: Sjolander to the NEWWTP — Approximately 6,500 of 42-
inch sewer to be located within a 20 -foot Municipal Utility Easement
(WE) to be granted to the City of Baytown by the Hunter's Creek
Development owner.
C. Waterline Extension from the proposed elevated water tank to the
NEWWTP inside City property.
Package 2: Lift Station No. 75 UplZrade and Force Main
a. Approximately 9,400 LF of 16 -inch force main from Lift Station No. 75
through the Debasco tract, under the UPRR then northwest to the
NEWWTP. The City is to provide all easements across the Debasco tract.
b. Lift station upgrade to include replacement of the existing 30 hp pump
motor with a 50 hp motor to accommodate the increased head to be
experienced with the re- direction of the force main. The existing pumps
are capable of meeting the demand parameters. The electrical system was
originally designed to accommodate the motor size upgrade. Only minor
modifications to the electrical system are required at this time.
Package 3: Pinehurst Lift Station (LS No. 30) Force Main
a. Approximately 2,400 LF of 8 -inch force main from Lift Station No. 30
under Cedar Bayou to a proposed gravity line starting at the Cedar Bayou
Park Utility District Wastewater Treatment Plant ( CBPUDWWTP).
b. Gravity Sewer from the CBPUDWWTP to the NEWWTP: Approximately
1,300 LF of 18 -inch gravity extending north to the north side of the UPRR
® and CenterPoint fee strips to a proposed manhole located within an
easement in the Hunter's Creek Subdivision. At that point the gravity line
Amendment, Page 2
® increases to 21 -inch and extends approximately 2,600 LF northeast
parallel to the railroad to the NEWWTP site.
2. Section 1.01 is hereby amended to add subsection C, which shall read as follows:
C. If authorized by OWNER, ENGINEER shall furnish Resident
Project Representative(s) with duties, responsibilities and
limitations of authority as set forth in Exhibit D.
3, Section 3.02 is hereby amended to add subsection A, which shall read as follows:
A. (Modified) If OWNER fails within a reasonable period of time
to give written authorization to proceed with any phase of services
after completion of the immediately preceding phase, or if OWNER
delays ENGINEER's services, ENGINEER may, after giving seven
days written notice to OWNER, suspend services under this
Agreement. If during such seven -day period, OWNER gives written
authorization to proceed or ENGINEER'S services are no longer
delayed by OWNER, ENGINEER may not suspend services under
this Agreement.
4. Article 5 is hereby amended to add Section 5.03 to read as follows:
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the accuracy of opinions
of Total Project Costs.
5. Section 6.01 is hereby amended to add subsection G, which shall read as follows:
G. Prior to the commencement of the Construction Phase, OWNER
shall notify ENGINEER of any variations from the language
indicated in Exhibit E, "Notice of Acceptability of Work," or of any
other notice or certification that ENGINEER will be requested to
provide to OWNER or third parties in connection with the Project.
OWNER and ENGINEER shall reach agreement on the terms of
any such requested notice or certification, and OWNER shall
authorize such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
6. Section 6.01 is hereby amended to add subsection I, which shall read as follows:
I. During the Construction Phase, ENGINEER shall not 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 the Contractor's work in progress, nor for any failure of
Contractor to comply with Laws and Regulations applicable to
Contractor's furnishing and performing the Work.
Amendment, Page 3
® 7. Section 6.01 is hereby amended to add subsection J, which shall read as follows:
J. (Modified) ENGINEER neither guarantees the performance of
any Contractor nor assumes responsibility for any Contractor's
failure to furnish and perform the Work in accordance with the
Contract Documents. However, nothing contained in this
paragraph shall be construed so as to absolve ENGINEER from
liability for any such failure about which ENGINEER knew or
should have known existed in the exercise of ENGINEER's services
under this Agreement.
8. Section 6.01 is hereby amended to add subsection •K; which shall read as follows:
K. (Modified) ENGINEER shall not be responsible for the acts or
omissions of any Contractor(s), subcontractor or supplier, or of any
of the Contractor's agents or employees or any other persons (except
ENGINEER's own employees and its consultants for which it is
legally liable) at the Site or otherwise furnishing or performing any
of the Contractor's work; or for any decision made on
interpretations or clarifications of the Contract Documents given by
OWNER without consultation and advice of ENGINEER.
9. Section 6.01 is hereby amended to add subsection L, which shall read as follows:
L. (Modified) The General Conditions for any construction contract
documents prepared hereunder are to be the Standard Form of
Agreement between Owner and Contractor and as approved by
OWNER in writing.
10. Article 6 is hereby amended to add section 6.03, which shall read as follows:
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction Phase services with
either OWNER's representatives or a third party,
ENGINEER's Basic Services under this Agreement will be
considered to be completed upon completion of the Final
Design Phase or Bidding or Negotiating Phase as outlined in
Exhibit A.
B. It is understood and agreed that if ENGINEER's Basic
Services under this Agreement do not include Project
observation, or review of the Contractor's perforn-iance, or
any other Construction Phase services, and that such services
will be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or review and waives any
claims against the ENGINEER that may be in any way
0 connected thereto.
Amendment, Page 4
• 11. Section TO1.A is hereby amended to add the following definitions:
1. Addenda -- Written or graphic instruments issued prior to the opening
of Bids which clarify, correct, or change the Bidding Documents.
6. Basic Services - -The services to be performed for or furnished to
OWNER by ENGINEER in accordance with Exhibit A, Part 1, of
this Agreement.
7. Bid - -The offer or proposal of the bidder submitted on the prescribed
form setting forth the prices for the Work to be performed.
8. Bidding Documents- -The advertisement or invitation to Bid,
instructions to bidders, the Bid form and attachments, the Bid bond,
if any, the proposed Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended by ENGINEER, which
is signed by Contractor and OWNER to authorize an addition,
deletion or revision in the Work, or an adjustment in the Contract
Price or the Contract Times, issued on or after the Effective Date of
the Construction Agreement.
10. Construction Agreement- -The written instrument which is evidence
of the agreement, contained in the Contract Documents, between
OWNER and Contractor covering the Work.
11. Construction Contract - -The entire and integrated written agreement
between the OWNER and Contractor concerning the Work.
12. Construction Cost - -The cost to OWNER of those portions of the
entire Project designed or specified by ENGINEER. Construction
Cost does not include costs of services of ENGINEER or other
design professionals and consultants, cost of land, rights -of -way, or
compensation for damages to properties, or OWNER's costs for
legal, accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project, or the cost of other services to be provided by others to
OWNER pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. (Modified) Contract Documents -- Documents that establish the
rights and obligations of the parties engaged in construction and
include the Construction Agreement between OWNER and
Contractor and all documents referenced therein, Addenda (which
pertain to the Contract Documents), Contractor's Bid (including
® documentation accompanying the Bid and any post -Bid
Amendment, Page 5
documentation submitted prior to the notice of award) when
® attached as an exhibit to the Construction Agreement, the notice to
proceed, the bonds, appropriate certifications, insurance documents
the General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more specifically
identified in the Construction Agreement, together with all Written
Amendments, Change Orders, Work Change Directives, Field
Orders, and ENGINEER's written interpretations and clarifications
issued on or after the Effective Date of the Construction Agreement.
Approved Shop Drawings and the reports and drawings of
subsurface and physical conditions are not Contract Documents.
14. Contract Price - -The moneys payable by OWNER to Contractor for
completion of the Work in accordance with the Contract Documents
and as stated in the Construction Agreement.
15. Contract Times - -The numbers of days or the dates stated in the
Construction Agreement to: (1) achieve Final Completion, and (ii)
complete the Work so that it is ready for final payment as evidenced
by ENGMER's written recommendation of final payment.
16. Contractor - -An individual or entity with whom OWNER enters into
a Construction Agreement.
17. Correction Period- -The time after Final Completion during which
Contractor must correct, at no cost to OWNER, any Defective
Work, normally one year after the date of Final Completion or such
longer period of time as may be prescribed by Laws or Regulations
or by the terms of any applicable special guarantee or specific
provision of the Contract Documents.
18. Defective - -An adjective which, when modifying the word Work,
refers to Work that is unsatisfactory, faulty, or deficient, in that it
does not conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been damaged prior to
ENGINEER's recommendation of final payment.
21. Effective Date of the Construction Agreement- -The date indicated in
the Construction Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two parties to
sign and deliver.
Amendment, Page 6
® 24. Field Order - -A written order issued by ENGINEER which directs
minor changes in the Work but which does not involve a change in
the Contract Price or the Contract Times,
25. Final Completion shall mean that all work has been completed, all
final punch list items have been inspected and satisfactorily
completed, all payments to subcontractors have been made, all
documentation and warranties have been submitted, all closeout
documents have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract Documents which sets
forth terms, conditions, and procedures that govern the Work to be
performed or furnished by Contractor with respect to the Project.
33. Record Drawings - -The Drawings as issued for construction on
which the ENGINEER, upon completion of the Work, has shown
changes due to Addenda or Change Orders and other information
which ENGINEER considers significant based on record documents
furnished by Contractor to ENGINEER and which were annotated
by Contractor to show changes made during construction.
35. Resident Project Representative- -The authorized representative of
ENGINEER, if any, assigned to assist ENGINEER at the Site
during the Construction Phase. The Resident Project Representative
will be ENGINEER's agent or employee and under ENGINEER's
supervision. As used herein, the term Resident Project
Representative includes any assistants of Resident Project
Representative agreed to by OWNER. The duties and
responsibilities of the Resident Project Representative are as set
forth in Exhibit D.
37. Shop Drawings- -All drawings, diagrams, illustrations, schedules,
and other data or information which are specifically prepared or
assembled by or for Contractor and submitted by Contractor to
ENGINEER to illustrate some portion of the Work.
39. Specifications- -That part of the Contract Documents consisting of
written technical descriptions of materials, equipment, systems,
standards, and workmanship as applied to the Work and certain
administrative details applicable thereto.
40. Substantial Completion- -The time at which the Work (or a specified
part thereof) has progressed to the point where, in the opinion of
ENGINEER, the Work (or a specified part thereof) is sufficiently
® complete, in accordance with the Contract Documents, so that the
Amendment, Page 7
:7
Work (or a specified part thereof) can be utilized for the purposes
for which it is intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work refer
to Substantial Completion thereof.
41. Supplementary, Conditions- -That part of the Contract Documents
which amends or supplements the General Conditions.
42. (Modified) Total Project Costs - -The sum of the Construction Cost,
allowances for contingencies, the total costs of services of
ENGINEER or other design professionals and consultants, cost of
land, rights -of -way, compensation for damages to properties,
OWNER's costs for legal, accounting, insurance counseling or
auditing services, interest and financing charges incurred in
connection with the Project, and the cost of other services to be
provided by others to OWNER pursuant to Exhibit B of this
Agreement.
44. Work Change Directive - -A written directive to Contractor issued on
or after the Effective Date of the Construction Agreement and
signed by OWNER upon recommendation of the ENGINEER,
ordering an addition, deletion, or revision in the Work, or
responding to differing or unforeseen subsurface or physical
conditions under which the Work is to be performed or to
emergencies. A Work Change Directive will not change the
Contract Price or the Contract Times but is evidence that the parties
expect that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued Change
Order following negotiations by the parties as to its effect, if any, on
the Contract Price or Contract Times.
12. Section 8.01 is hereby supplemented to include the following:
8.01 Exhibits Included
E. Exhibit E, "Notice of Acceptability of Work," consisting of
two (2) pages.
13. Article 1, Part 1 of Exhibit A is hereby amended to add the following:
A1.02 Final Design Phase.
A. After acceptance by OWNER of the Preliminary Design
Phase documents and revised opinion of probable
Construction Cost as determined in the Preliminary Design
Phase, but subject to any OWNER - directed modifications or
changes in the scope, extent, character, or design
Amendment, Page 8
® requirements of or for the Project, and upon written
authorization from OWNER, ENGINEER shall:
1. (Modified) On the basis of the above acceptance,
direction, and authorization, prepare final Drawings
indicating the scope, extent, and character of the
Work to be performed and furnished by Contractor.
Specifications will be prepared, where appropriate, in
conformance with the 16- division format of the
Construction 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 Engineer on behalf of
the OWNER to file applications for permits from or
to obtain approvals of
(1) utilities, pipeline, railroad companies and all
other entities that may impact the Project;
and
(2) 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. Advise OWNER of any adjustments to the opinion
of probable Construction Cost and any adjustments
to Total Project Costs known to ENGINEER.
4. Perform or provide the following additional final
Design Phase tasks or deliverables:
a. Coordination with Harris County in connection with
the final sewer line alignments.
b. Coordination with HCFCD regarding crossings and
approvals.
C. Coordination with TWDB in accordance with
funding requirements.
d. Coordination with UPRR, TxDOT, CenterPoint
Energy, and pipeline companies in connection with
permitting and/or licensing agreements for proposed
sewer lines.
e. Attendance at project meetings for the duration of
the project.
5. Prepare and furnish Bidding Documents for each of
® the three separate bid packages identified in section 1
Amendment, Page 9
• of this Amendment for review and approval by
OWNER, its legal counsel, and other advisors, as
appropriate, and assist OWNER to the preparation of
other related documents.
6. Submit 5 final copies of the Bidding Documents and
a revised opinion of probable Construction Cost for
each of 'the separate bid packages identified in
section 1 of this Amendment to OWNER within the
following number of days after authorization to
proceed with this phase:
Package
Description
No. of Calendar
Days
I
S'olander/Needle oint Gravity Sewers
210*
2
Lift Station No. 75/Force Main
210*
3
Pinchurst Force Main/Gravity Sewers
210*
* The contract duration for all three bid packages
shall not exceed 210 calendar days.
7. (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 this /these
request(s) is made prior to the preparation of the final
bid documents.
B. In the event that the Work designed or specified by
ENGINEER is to be performed or furnished under more than
one prime contract, or if ENGINEER's services are to be
separately sequenced with the work of one or more prime
Contractors (such as in the case of fast - tracking), OWNER
and ENGINEER shall, prior to commencement of the Final
Design Phase, develop a schedule for performance of
ENGINEER's services during the Final Design, Bidding or
Negotiating, Construction, and Post - Construction Phases in
order to sequence and coordinate properly such services as
are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or
become an amendment to Exhibit A whether or not the work
under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or
specified by ENGINEER upon which the ENGINEER's
Amendment, Page 10
U
compensation has been established under this Agreement is
one.
D. (Modified) ENGINEER's services under the Final Design
Phase will be considered complete on the date when the
submittals required by paragraph A1.02.A.6 have been
delivered to and accepted by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and
the most recent opinion of probable Construction Cost as
determined in the Final Design Phase, and upon written
authorization by OWNER to proceed, ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids
or negotiating proposals for the Work and, where
applicable, provide 15 sets of plans and
specifications for each bid package.
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. Perform or provide the following additional Bidding
or Negotiating Phase tasks or deliverables: N/A
5. (Modified) Attend Mandatory Pre -Bid Conferences
and Bid openings, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both
evaluating Bids or proposals and written
recommendation to award contracts for the Work.
6. (Added) Assist in connection with Bid protests,
rebidding, or re- negotiating contracts for
construction, materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be
considered complete upon commencement of the
Construction Phase,
Amendment, Page I 1
• A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating
Phase, and upon written authorization from OWNER,
ENGINEER shall:
1. General Administration of Construction Contract.
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 Independent Testing
Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the
services identified in paragraph B2.01.0, if any.
3. Pre - Construction Conference. Participate in a Pre -
Construction Conference prior to commencement of
Work at the Site.
4. Baselines and Benchmarks. As appropriate,
establish baselines and benchmarks for locating the
Work which in ENGINEER's judgment are
necessary to enable Contractor to proceed.
S. Visits to Site and Observation of 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
Amendment, Page 12
• 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
Construction 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
Amendment, Page 13
® 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, ENGINEER 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. (Modified) 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, 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. 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. ENGINEER 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
Amendment, Page 14
Amendment, Page 15
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. 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
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 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,
ENGINEER shall be fair and not show partiality to
OWNER or Contractor.
13. Applications for Payment. 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
A1.04.A.5.a are expressly subject to the
limitations set forth in paragraph A1.04.A.5.b
and other express or general limitations in
this Agreement and elsewhere.
b. By recommending any payment, ENGINEER
shall not thereby be deemed 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
Amendment, Page 16
® 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.
14. Contractor'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 A1.04.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 1.04.A.9.
Amendment, Page 17
0
c. ENGINEER shall transmit these documents
to OWNER within thirty (30) days of receipt
of documents from Contractor.
d. (Added) Preparing and furnishing to
OWNER Record Drawings on mylar
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, ENGINEER
considers the Work Substantially Complete,
ENGINEER shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. Additional Tasks. Perform or provide the following
additional Construction Phase tasks or deliverables:
a. Attendance at project meetings for the duration of the
project.
17. (Modified) Final Notice of Acceptability of the
Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that
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 the Contract Documents.
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 final payment to Contractors. If the Project
involves more than one prime contract as indicated in
paragraph A1.02.C, Construction Phase services may be
Amendment, Page 18
® rendered at different times in respect to the separate
contracts.
C. Limitation 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.
A1.05 Post - Construction Phase
A. Upon written authorization from OWNER, ENGINEER,
during the Post - Construction Phase, shall:
1. Provide Operations and Maintenance Manuals to the
OWNER as well as electronic as -built drawings for
the completed Project, in a format acceptable to the
OWNER.
2. Together with OWNER, visit the Project to observe
any apparent defects in the Work, assist OWNER in
consultations and discussions with Contractor
concerning correction of any such defects, and make
recommendations as to replacement or correction of
Defective Work, if present.
B. The Post - Construction Phase services may commence
during the Construction Phase and, if not otherwise modified
in this Exhibit A, will terminate at the end of the Correction
Period.
A1.06 Construction Management/Resident Project Observer Services.
ENGINEER shall:
1. Provide a Construction Project Manager to coordinate all
construction activities related to the projects.
2. Conduct monthly project status meetings.
3. Process monthly contractor pay estimates.
4. Provide shop drawing review.
5. Provide a full -time, on -site Resident Project Observer
(RPO) to oversee construction activities. Specifically
excluded from these services is any review of the
contractor's means or methods of construction or safety
procedures, which shall remain the sole responsibility of
Amendment, Page 19
•
the contractor. The total construction time is estimated to
be 15 months for the three-design packages.
14. Section A2.02.A.1 of Article 1, Part 2 of Exhibit A is hereby amended to read as
follows:
1. Topographic survey. Engineer shall perform a topographic
survey for the proposed alignment of the Lift Station No.
75 force main through the Debasco tract. The survey will
be performed along the routing adjacent to property lines as
directed by the City and includes necessary pipeline probe
coordination.
15. Section A2.02.A. of Article 1, Part 2 of Exhibit A is hereby amended to Add
Section A2.02.A.4 to read as follows:
4. Perform Environmental Assessment services through the
Debasco tract as identified in the attached proposal from
Berg - Oliver dated June 8, 2005.
16. The exclusions to the ENGINEER'S scope of work outlined in appendix 1 to
Exhibit "A" is hereby amended to read as follows:
1. Work outside of the scope of work as defined above where additional
engineering effort will be required.
2. Survey and acquisition documents for all required easements
3. Application and permit fees.
17. Section B2.01 of Exhibit "B" is hereby amended to add the following subsections,
which shall read as follows:
K. Furnish to ENGINEER data as to OWNER's anticipated costs for
services to be provided by others for OWNER so that ENGINEER
may make the necessary calculations to develop and periodically
adjust ENGINEER's opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an
individual or entity other than, or in addition to, ENGINEER to
represent OWNER at the Site, define and set forth the duties,
responsibilities, and limitations of authority of such other party and
the relation thereof to the duties, responsibilities, and authority of
ENGINEER.
M. Attend the pre -bid conference, bid opening, pre - construction
conferences, construction progress and other job related meetings,
and Substantial Completion and final payment inspections.
Amendment, Page 20
® N. Provide copies of daily observation reports prepared by OWNER's
on -site representative, if any, to ENGINEER during construction
phase.
18. Section C4.0l.A.1 of Article 4 of Exhibit "C" is hereby amended to read as
follows:
A. OWNER shall pay ENGINEER for Basic Services set forth in
Exhibit A as follows:
(Modified) A cost not to exceed amount of $831,785.00,
which does not include those Engineer's Consultant's
charges as provided below in this Article 4, Subparagraph
C4.05, to be distributed at the completion of each of the
phase in the following amount:
a. Preliminary Design Phase ........ $ 93,550
b. Final Design Phase ...................$ 351,300.00
C. Bidding and Negotiating Phase$ 10,560.00
d. Construction Phase ...................$ 376,375.00
19. Section C4.01.A.2 of Article 4 of Exhibit "C" is hereby amended to read as
follows:
2. (Modified) ENGINEER may with the consent of OWNER alter the
distribution of compensation between individual phases noted
herein to be consistent with services actually rendered, but shall
not exceed the total cost not to exceed amount unless approved in
writing by the OWNER.
20. Section C4.03.A.1 of Article 4 of Exhibit "C" is hereby amended to read as
follows:
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for Additional Services as follows:
1. General. For services of ENGINEER's employees engaged
directly on the Project pursuant to paragraph A2.01 or
A2.02 of Exhibit A of the Agreement, except for services
as a consultant or witness under paragraph A2.0l.A.13, an
amount equal to ENGINEER's Salary Costs based upon the
rate schedule, which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and purposes, times a
Factor of 2_3 plus Reimbursable Expenses. Survey services
will be based on the rate schedule in appendix 1 of Exhibit
® C and will be billed as flat rates. Additional services shall
Amendment, Page 21
® services shall not exceed the following without the prior
written consent of the OWNER:
a. Topographic survey (Prelim Design) .......... $133,600
b. Topographic survey (Final Design) ..............$12,800
c. TWDB Application and Planning Phase
1. Engr Support for itemC4.05AA(2). ......... $13,140
2. Financial Advisory Support ........................$4250
3. PEFR .. ............................... .........................$3,815
d. Environmental Services (Final Design) ........ $11,660
21. Section C4.04 of Article 4 of Exhibit "C" is hereby amended to read as follows:
A. (Modified) When not included in compensation for Basic Services
under paragraph C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in Appendix 2 of this
Exhibit 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 shall not exceed the following for each phase of service
required herein without the prior written consent of the Owner:
a. Reimbursable Expenses (Prelim Design ) ....................$6,000
b. Reimbursable Expenses (Final Design ) ......................$8,000
C. Reimbursable Expenses (Construction Services) .....$12,000
•
22. The following Exhibit E, which is attached hereto, is hereby added to this
agreement and incorporated herein for all intents and purposes.
III.
Miscellaneous
3.01 Interpretation. This First Amendment 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 Amendment
3.02 Captions. Captions contained in this Amendment are for reference only and, therefore,
have no effect in construing this First Amendment. The captions are not restrictive of the
subject matter of any section in this First Amendment.
3.03 No Waiver. By this First Amendment, 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 First Amendment, the Agreement or any other contract or
agreement or addenda, any charter, or applicable state law. Nothing contained herein
shall be constructed so as to limit or waive the Owner's sovereign immunity.
Amendment, Page 22
•
3.04 Construction. The provisions of this First Amendment and the provisions of the
Agreement should be read together and construed as one agreement, for this amendment
is meant to supplement but not replace any provision in the Agreement, except as
specifically noted herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the
Effective Date of which is the date of signature by the City Manager of the City of
Baytown.
OWNER: CITY OF BAYTOWN
Printed Name Gary Jackson
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77422 -0424
Designated Representative (paragraph
6.02.A):
Name: W.R._(Bill) Pedersen, P.E.
Title: City Engineer
Phone Number: (281) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: w!pedersen@baytown.org
• Amendment, Page 23
ENGINEERS, INC.
Printed
Date Signed /O— /O -- O S
Address for giving notices:
13333 Northwest Freeway, Suite 300
Houston, Texas 77040
Designated Representative (paragraph
6.02.A):
Name: David A. Hamilton, P.E.
Title: Vice President
Phone Number: (713) 462 -3178
Facsimile Number: (713) 462 -1631
E -Mail Address: dhamilton@nateeng.com
® This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement
between OWNER and ENGINEER for Professional Services dated
Initial:
OWNER
ENGINEER_
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR
that the completed Work furnished and performed by CONTRACTOR under the above
Contract is acceptable, expressly subject to the provisions of the related Contract
Documents and the terms and conditions set forth on the reverse side hereof.
Title:
® Dated: ,
Exhibit "E," Page t
0 (Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is
expressly made subject to the following terms and conditions to which all persons who
receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the
engineering profession practicing under similar conditions at the same time and in the
same locality.
2. Said Notice reflects and is an expression of the professional judgment of
ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and
belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of
services ENGINEER has been employed by OWNER to perform or furnish during
construction of the Project (including observation of the CONTRACTOR's work)
under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER
as a result of carrying out the responsibilities specifically assigned to ENGINEER
under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S
performance under the Construction Contract nor an assumption of responsibility for
any failure of the Contractor to furnish and perform the work thereunder in
accordance with the Contract documents, unless ENGINEER knew or should have
known of such failure and failed to notify the Owner of such failure and take
appropriate action so that the same were corrected and brought into compliance with
the Contract Documents.
Exhibit "E," Page 2