Ordinance No. 10,242ORDINANCE NO. 10,242
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND- DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE SECOND AMENDMENT TO THE
CONTRACT FOR ENGINEERING SERVICES WITH POST, BUCKLEY, SCHUH,
AND JERNIGAN, INC., FOR THE FINAL DESIGN AND OTHER ENGINEERING
SERVICES ASSOCIATED WITH THE WOODLAWN LIFT STATION PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED FORTY -FIVE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS
($45,500.00); 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 City Clerk to attest to the First Amendment to the contract for
engineering services with Post, Buckley, Schuh, and Jernigan, Inc., for the final design and other
engineering services associated with the Woodlawn Lift Station Project. A copy of said amendment 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 Post,
Buckley, Schuh, and Jernigan, Inc., in an amount not to exceed FORTY -FIVE THOUSAND FIVE
HUNDRED AND NO/] 00 DOLLARS ($45,500.00) for professional engineering services in accordance
with the contract and amendment authorized in Section 1 hereof.
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 12'x' day of January, 2006.
CALVIN MUNDINGER, Ma
MI. 14 1, VOW
. . a . • . • •
�c
® ACIO RAMIREZ, SR., i y Attorney
R:\Karen \Fi1es \City Counci1\0rdinanccs\ 006Uanuary 12\PH&JAmendment2.doc
• SECOND AMENDMENT
TO THE
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
. This Second Amendment ( "Second Amendment ") to that certain "Standard Form of Agreement"
between the City of Baytown and PBS &J, dated the 30`h day of June, 2005, is made by and between the
same parties on the date hereinafter last specified.
W ITNESSETH:
WHEREAS, the City of Baytown (the "City ") and PBS &J ( "Engineer ") did enter into an
agreement, dated the 30'h day of June 2005, ( "Agreement ") to perform engineering services for the
Woodlawn /Raccoon Lift Stations Project; and
WHEREAS, after the effective date of the Agreement, the Engineer and the City entered into the
First Amendment to the Standard Form of Agreement on the 8`h day of August, 2005 ( "First
Amendment ") because MCC panel at the Raccoon Lift Station failed and the City no longer needed an
investigative study of the panel; and
WHEREAS, on November 22, 2005, the Engineer submitted its investigative report of the
Woodlawn Lift Station Project (the "Project "); and
WHEREAS, the City and the Engineer desire to proceed to final design and construction of the
Project based upon Option 2 as presented in such investigative report based upon the terms and conditions
contained herein; and
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
Second Amendment shall have the same meanings as in the Agreement and the First Amendment.
II.
Amendments
1. 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
P A
Second Amendment to the Standard Form of Agreement, Page I
® 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 dunng 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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
Second Amendment to the Standard Form of Agreement, Page 2
® decision made on interpretations or clarifications of the Contract Documents
W
given by ONER without consultation and advice of ENGINEER.
T 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.
8. Section 7.0 LA 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.
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
Second Amendment to the Standard Form of Agree , Page 3
® Bid and any post -Bid 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 mote 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: (i) achieve Final Completion, and (ii) complete
the Work so that it is ready for final payment as evidenced by
ENGINEER'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.
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.
Second Amendment to the Standard Form of Agreement, Page 4
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 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.
Second Amendment to the Standard Form of Agreement, Page 5
® 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.
9. Section 8.01.E of the Agreement is hereby amended to read as follows:
8.01 Exhibits Included
E. Exhibit E, "Notice of Acceptability of Work," consisting of two (2)
pages.
10. 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 requirements of or for the Project, and upon
written authorization from OWNER, ENGINEER shall:
(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.
Second Amendment to the Standard Form of Agreement, Page 6
® 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.
v
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:
Prepare final plans and specifications suitable for construction for
improvements to the Woodlawn Lift Station. Improvements to
include the replacement of all pumps at the lift station, coating of the
wet well interior, replacement of the pump discharge elbow,
demolition of the existing risers, replacement of the risers and new
check valves, modifications to the baffle wall, additional vents, dry
well concrete top removal, staircase to access mid -level and
electrical improvements. The Improvements noted above are
described in detail as Option 2 of the Preliminary Engineering
Report submitted to the City of Baytown on November 22, 2005.
Estimate of Construction Costs is $602,593.75.
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.
6. Submit 5 final copies 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.
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.
Second Amendment to the Standard Form of Agreement, Page 7
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 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 A 1.02.A.6 have been delivered to and
accepted and approved by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance and approval 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:
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
Second Amendment to the Standard Form of Agreement, Page 8
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.
A 1.04 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.
Second Amendment to the Standard Form of Agreement, Page 9
• 5. 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 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
Second Amendment to the Standard Form of Agreement, Page 10
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
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.
b. (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.
S. 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
Second Amendment to the Standard Form of Agreement, Page 1 1