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SECOND AMENDMENT
TO THE
STANDARD FORM OF AGREEitTENT
BET«'EEN O«'NER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
ti
COUNTY OF HARRIS §
This Second Amendment ( "Second Amendment ") to that certain "Standard Fonnrr of
Agreement bet-ween Owner and Engineer- for- Professional Services" between the City of Baytown
and Klotz Associates, Inc., dated May 24, 2006, and amended on , 2006, is made
by and between the same parties on the date hereinafter last specified.
W 17 1%4 ES SETH_
WHEREAS- the City of Baytown ( "Owner ") and Klotz Associates, Inc., ( "Engineer ") did
enter into a Standard Form of Agreement bet-,veen Owner and Engineer for Professional Services
associated with the preliminary design for the Kilgore and Bob Smith Road Reconstruction Project.
on May 24, 2006 ( "Agreement "): and
WHEREAS. the Agreement was thereafter amended and approved by the City Council of the
City of Baytown on July 27, 2006, for Engineer to perform preliminary engineering services for the
replacement of pavement on additional streets in Council Districts I and 3 to address base failure
and cracking along the alignments and for related infrastructure issues ( "First Amendment "); and
WHEREAS, the Owner desires Engineer to perform engineering services for final design
and related bidding and construction services for the Kilgore and Bob Smith Road Reconstruction
Project; and
WHEREAS. Engineer desires to perform the work specified herein in accordance with the
terms and conditions contained in this Second Amendment and the Agreement; NOW
THEREFORE.
NOW THEREFORE, for and in consideration ofthe mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
1 . Definitions. Unless a different meaning clearly appears from the context, words and phrases
as used in this Second Amendment shall have the sarrie meanings as in the Agreement and
the First Amendment.
2_ Amendment.
2.01 The definition of -Project" as defined on the first page of the Agreement and in
Section 2.01 of the First Amendment shall be revised to read as follows:
.�sI:M
Second AnZendnlent to the Standard Forn-i of Agreement
be"veen Owner and Engineer for Professional Services, Page l
OWNER intends to contract for engineering set-vices for
Preliminary Design, Final Design. Bidding, and Construction Phase on the
following roads:
2. Preliminary Design on the following roads:
4
Alle\ Segment 13
Oklahoma
Huggins
loft
470 linear ft
5
Alley Segment 14C
Louisiana
Kentucky
loft
820 linear ft i
6
west Gulf
Laredo
Highway 146
28 ft
1,185 linear ft
7
Schilling
Garth
Dead End
32 ft
240 linear ft
8
Robin
Honeysuckle
Pin Oak
18 ft
2,240 linear ft
9
Yau pon
Lake« ood
Burnet
30 ft
720 linear ft
10
Caldwell
Robin
North Holly
j 18 ft
1,580 linear ft
1 I
Rolling��'ood
j Decker
North Burnet
25 ft
820 linear ft ,
to replace the pavement on the above - referenced streets, to address the base
failure and cracking along the alignment, to relocate and upsize the 6" cast
iron water line under Kilgore Road to an 8" PVC water line, to replace the
existing 15 -inch sanitary sewer and 6" water line along the Bob Smith Road
alignment. and to replace each storin sewer, sanitary sewer, and water line
crossing under each of the above - referenced streets due to age and to prevent
future pavement cuts. ("Project ").
2.02 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.
2.03 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.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 2
2.04 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.
2.05 Section 6.01 is hereby amended to add subsection I. which shall read as follows:
1. 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.
2.06 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.
2.07 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.
2.08 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.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 3
2.09 Section 7.01.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.
7. Bid - -The offer or proposal of the bidder submitted on the prescribed
forun setting forth the prices for the Work to be performed.
S. Bidding Documents- -The advertisement or imitation 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 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. including a storm
water pollution prevention plan and a traffic control plan, together with
all Written Amendments, Change Orders, Work Change Directives.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 4
Field Orders. and ENGINIEER's written interpretations and
clarifications issued on or after the Effective Date of the Construction
Agreement.
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
Constriction Agreement to: (i) achieve Final Completion, and (ii)
complete the Work so that it is ready for final payment as evidenced by
ENGINEER's xvritten 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 Constrztction 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.
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.
Second Amendment to the Standard Form of Aereement
between Owner and Engineer for Professional Services, Page 5
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 Dratings- -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 infornation 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.
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 Constriction 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
Second Amendment to the Standard Porni of Agreement
between Owner and Eneineer for Professional Services, Page 6
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. FVork 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.
2. i 0 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.
2.11 Article 1, Part 1 of Exhibit A is hereby amended to add the following:
A 1.02 Final Design Phase.
A. After acceptance by OWNER of the Preliminary Design Phase
documents and revised opinion of probable Constriction 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:
1. (Modified) On the basis of the above acceptance, direction, and
authorization, prepare final Drawings at 1:20 scale in
AutoCAD format. 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
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 7
(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. The opinion of probable Construction
Cost shall include. but not be limited to. cost estimates for both
asphalt and concrete pavement replacement.
4. Perform or provide the following additional final Design Phase
tasks or deliverables:
a. Coordinate with OWNER on design issues and project
progress:
b. Coordinate with surveyor. TSC Engineering Company. to
obtain complete topographic survey. including plan view
drawings as well as the ASCII point file;
C. Coordinate with Geotest Engineering, Inc. to obtain the
geotechnical study;
d. Coordinate with Harris County Flood Control District on
crossings:
Work with OWNER to establish the service area for the
existing sanitary sewer on Bob Smith Road and calculate
the peak flows based on a peaking factor of four to size the
proposed pipe;
f. Obtain signatures from CenterPoint, Entex, and Verizon.
g. Attend design meetings to kick off the Project and
throughout the Design Phase and prepare and distribute
meeting minutes;
h. Prepare a project schedule in Microsoft Project and
distribute at design meetings;
i. Attend City Council Meetings as requested by OWNER:
J. Address continents from the OWNER throughout the
Design Phase.
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 two
hundred seventy (270) days after authorization to proceed with
this phase.
Second Amendment to the Standard Fomn of Agreement
between Owner and Engineer for Professional Services, Page 8
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 f imished 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 and the ENGINEER has delivered full size
mylars.
A 1.03 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. including and
aeotechnical reports, 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
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 9
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
a. Send sets of bid documents (construction plans and project
manual) to local bid information services (Dodge and
AGC);
b. Provide sets of bid documents for purchase by prospective
bidders and suppliers; and
C. Provide contract documents for signature by the City and
the Contractor.
5. (Modified) Attend Mandatory Pre -Bid Conferences and Bid
openings. prepare Bid tabulation sheets. assemble contract
documents, assist OWNER in evaluating both the Bids or
proposals and the qualifications of the Bidders, and provide a
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 TestingLaboratoty. Assist
OWNER in the selection of an independent testing laboratory
to perform the services identified in paragraph B2.01.0. if any.
Second Amendment to the Standard Form of Aereement
between Owner and Engineer for Professional Services, Page 10
3. Pre - Construction Conference. Participate in a Pre -
Construction Conference prior to commencement of Work at
the Site.
4. Buselines and Benchmarks. As appropriate. establish baselines
and benchmarks for locating the Work which in ENGINEER's
judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Obset-vatron of Constrllctlon. 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 specitically 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 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
conform to the Contract Documents and that the
integrity of the design concept of the completed Project
Second Amendment to the Standard Form of Agreement
bete cen Owner and En =ineer for Professional Senices, Page 1 1
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 responsibi 1 ity 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 finnish 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 vwork 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 functioning «hole as indicated in
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 12
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.
1 l . 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
Second Amendment to the Standard Form of Aereement
between Owner and Enizineer for Professional Services, Page 13
Substantial Completion, to the results of any
subsequent tests called for in the Contract Documents
and to any other qualifications stated in the
recommendation), and the conditions precedent to
Contractor's being entitled to such payment appear to
have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work. In the
case of unit price work, ENGINEER's
recommendations of payment will include final
determinations of quantities and classifications of
Contractor's work (subject to any subsequent
adjustments allowed by the Contract Documents). The
responsibilities of ENGINEER contained in paragraph
A 1.04.A.5.a are expressly subject to the limitations set
forth in paragraph A 1.04.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
ENGINTEER's recommendation of any payment
including final payment will impose on ENGINEER
responsibility to supervise, direct, or control
Contractor's work in progress or for the means,
methods. techniques, sequences, or procedures of
construction or safety precautions or programs incident
thereto, or Contractor's compliance with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work. It will also not impose
responsibility on ENGINEER to make any examination
to ascertain how or for what purposes Contractor has
used the moneys paid on account of the Contract Price.
or to determine that title to any portion of the work in
progress, materials, or equipment has passed to
OWNER free and clear of any liens, claims, security
interests, or encumbrances, or that there may not be
other matters at issue between OWNER and Contractor
that might affect the amount that should be paid.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services. Page 14
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.
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 trom 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.
b. Issue notice to proceed to Contractor.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 15
C. Develop punch list items to be addressed by the
Contractor.
d. Respond in writing to requests for information from
the Contractor regarding Contract Documents.
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
rendered at different times in respect to the separate contracts.
C. Limitation ofResponsibilities. 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- Cotnstt-ttction Phase
A. Upon written authorization from OWNER, ENGINEER, during the
Post - Construction Phase. shall:
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 recomtmendations as to replacement or
correction of Defective Work, if present.
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Paige 16
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.
2.12 Paragraph A2.02 of Article 1, Part 2 of Exhibit A is hereby deleted in its entirety:
2.13 Paragraph C4.0 LA. I contained in Exhibit "C" of the Agreement is hereby amended to
read as follows:
C4.01 For Basic Services Hav[ng:4 Determined
Scope —Cost not to Exceed Nfet {god of Payment
A. OWNER shall pay ENGINEER for Basic Services set
forth in Exhibit A as follows:
(Modified) A cost not to exceed amount of $268,100, which
does not include those Engineer's Consultant's charges as
provided below in this Article 4, Subparagraph C4.05, based
upon the rate schedule attached hereto as Appendix 1 of
Exhibit C. which shall not exceed the following for each
phase of service:
a. For Street Nos. 1 and 2
(1) Preliminary Design Phase ............... $22,700
(2) Design Phase .. ............................... $160,200
(3) Bidding Phase .. ............................... $10,100
(4) Construction/Post- Constr Phase ..... $41,200
b. For Street Nos. 3 through l 1
(1) Preliminary Design Phase .............. $33.900
2.14 Paragraph C4.03.A.1. contained in Exhibit C of the Agreement is hereby amended
to read as follows:
C4.03 ForA[Idltlonal Se11'ices
A. OWNER shall pay ENGINEER for Additional Services as follows:
General. For services of ENGINEER's employees engaged
directly on the Project pursuant to paragraph A2.01 of Exhibit
A of the Agreement, except for services as a consultant or
witness under paragraph A2.01.A.13, an amount equal to
ENGINEER's Direct Labor Costs based upon the rate
schedule, which is attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes, plus
Reimbursable Expenses. Additional Services, except those
specified in Paragraph A2.02, must be approved in writing by
Second Amendment to the Standard Fonn of Aereement
between Owner and Engineer for Professional Services, Page 17
the OWNER prior to the OWNER being liable for such
expenses.
2.15 Paragraph C4.04.A contained in Exhibit -C- of the Agreement is hereby amended to
read as follows:
C4.04 For Reimbursable Expenses
A. (Modified) When not included in compensation for Basic Services
under paragraph C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses at 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 S 1.000 for which the
ENGINEER seeks reimbursement. Reimbursable Expenses shall not
exceed the following for each phase of service under this Agreement:
a. For Street Nos. 1 and 2
(1) Preliminary Design Phase ................. S5,000
(2) Des ign /Bidding/Constr /Post - Constr
Phases ...................... ......................... S5,225
b. For Street Nos. 3 through 11
(1) Preliminary Design Phase ................ S2.600
2.16 Paragraph C4.05.A contained in Exhibit "C" of the Agreement is hereby amended to
read as follows:
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever compensation to ENGINEER herein is stated
to include charges of ENGINEER's Consultants, those charges shall
be the amounts billed by ENGINEER's Consultants to ENGINEER
times a Factor of 1.10. The consultant charges, including the Factor.
shall not exceed the following amounts specified for each of the
specified services. unless approved in writing by the OWNER:
a. Geotechnical for Street Nos. 1 and 2
(1) Preliminary Design Phase ............... S23,506
(2) Desigti/Biddirng /Constr /Post - Constr
Phases .............. ............................... S17.189
b. Geotechnical or Street Nos. 3 through 11
(1) Preliminary Design Phase .............. S26.176
C. Topographic for Streets Nos. 1 and 2
2) Design /Bidding /Constr/Post- Constr
Phases .............. ............................... S57,398
Second Amendment to the Standard Form of Agreement
between Owner and Engineer for Professional Services, Page 18
3. Entire Agreement. The provisions of this Second Amendment and the provisions of the First
Amendment and the Agreement should be read together and construed as one agreement
provided that. in the event of any conflict or inconsistency between the provisions of this
Second Amendment and the provisions of the First Amendment or Agreement, the
provisions of this Second Amendment shall control. Nothing contained in this Second
Amendment shall be construed in any way to limit or to waive the City's sovereign
immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one and
the same amendment. this day of , 2006, the date of execution
by the City Manager.
CITY OF BAYTOWN
C
ATTEST:
LORRI COODY. City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
GARY JACKSON, City Manager
KLOTZ ASSOCIATES, INC.
By:
(Signature)
(Printed Name)
(Title)
ATTEST:
Secretary
R:1KerenU-i les\Engineerirtg'�Engineering Agreements\Klotz'Street Bond Program Phase IV —Kilgore Road & Bob Smith RoaMecondAmendment.doc
Second Amendment to the Standard Fomi of Agreement
between Owner and Engineer for Professional Services, Page 19