Ordinance No. 10,899ORDINANCE NO. 10,899
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 FIRST AMENDMENT TO THE PROFESSIONAL SERVICES
AGREEMENT FOR FINAL DESIGN SERVICES FOR THE GOOSE CREEK SANITARY
SEWER TRUNK LINE PROJECT WITH CLAUNCH & MILLER, INC.; AUTHORIZING
PAYMENT IN AN AMOUNT NOT TO EXCEED TWO HUNDRED EIGHTY-FOUR
THOUSAND NINE HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($284,975.00);
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City
Manager to execute and the City Clerk to attest to the First Amendment to the Professional Services Agreement for
final design services for the Goose Creek Sanitary Sewer Trunk Line Project with Claunch & Miller, Inc. A copy of
said First 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 Baylovvn authorizes funds payable to Claunch & Miller,
Inc., in an amount not to exceed TWO HUNDRED EIGHTY-FOUR THOUSAND NINE HUNDRED SEVENTY-
FIVE AND NO/100 DOLLARS ($284,975.00) for engineering services in accordance with the Agreement authorized
in Section I hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease or an
increase in costs by TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided that the
amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25%).
Section 4:
the City of Baytown.
This ordinance shall lake effect immediately from and after its passage by the City Council of
INTRODUCED, READ and PASSED by the affirmative vote of the CityCouncil of the City of Baytown this
the 19th day of May, 2008.
ATTEST:
KATYf HUE DARNELL, City Clerk
APPROVED AS TO FORM:
. DONCARLOS , Mayor
ACIO RAMIREZ, SR., CM Attorney
R:\Karen\Files\City Counci]\Ordinances\2008\May l9\FirsiAmendmcntwiiliC&MGooseCicckSanitaryScwcr'lrunkLineProjec(..doc
FIRST AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
§
COUNTY OF HARRIS §
This First Amendment ("First Amendment1') to the Standard Form of Agreement between the
City of Baytown and Claunch & Miller, Inc., dated April 11, 2007, is made by and between the same
parties on the date hereinafter last specified to authorize the services necessary to provide final design
services for the Goose Creek Sanitary Sewer Trunk Line Project (the "Project").
WITNESSETH:
WHEREAS, the City of Baytown ("OWNER") and Claunch & Miller, Inc., ("ENGINEER") did
enter into an Engineering Services Agreement, dated April 11,2007 ("Agreement"); and
WHEREAS, OWNER and ENGINEER desire to amend the contract again for ENGINEER to
provide design, bidding, construction, and post-construction phase engineering services for the Project;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
1. Definitions, Unless a different meaning clearly appears from the context, words and phrases as
used in this First Amendment shall have the same meanings as in the Agreement.
2. Amendments
a. The scope of the services to be performed by the ENGINEER is hereby amended to include
the design, bidding, construction, and post-construction phase engineering services for the
Project as follows:
ENGINEER shall perform professional services necessary for the Goose Creek Sanitary
Sewer Trunk Line Project for the OWNER, which project involves the assessment of the
following two segments of an existing sanitary sewer trunk main in the City of Baytown:
o Segment 1 consists of approximately 11,775 L.F. of 18-inch to 36-inch sanitary sewer
which is aligned along Goose Creek Stream from Baker Road south to the Gulf Coast
Lift Station.
o Segment 2 consists of approximately 6,250 L.F. of 30-inch to 42-inch sanitary sewer and
is located between Gulf Coast Lift Station and Texas Avenue Lift Station.
ENGINEER shall perform professional services necessary for the design, bidding,
construction, and post-construction phase engineering services for the Project, which consists
of
> the rehabilitation by cured in place pipe liner of approximately 16,675 linear feet of
18-inch to 36-inch sanitary trunk line;
> the installation of a parallel line segment (approximately 440 linear feet) at the
crossing of the East Fork of Goose Creek;
First Amendment. Page 1
> The design will include the sanitary sewer lines recommended for
rehabilitation/replacement as outlined in the Preliminary Engineering Report
prepared by ENGINEER and submitted to OWNER in January 2008. The estimated
construction cost for performing these improvements is $4,120,200. ENGINEER
will update the cost estimate as the design phase progresses..
("Project").
b. 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.
c. 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.
d. 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.
e. 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.
f. 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
g. Section 6.01 is hereby amended to add subsection K, which shall read as follows:
First Amendment. Page 2
K. (Modified) ENGINEER shall not be responsible for the acts or omissions
of any Contractors), 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.
h. 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.
i. Section 7.01 .A is hereby amended to add the following definitions:
I. 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.
II. 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 atl
documents referenced therein, Addenda (which pertain to the Contract
First Amendment. Page 3
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 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-Tlie 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 Qrder-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
First Amendment. Pace 4
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.
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.
First Amendment. Page 5
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.
j. 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,
k. 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:
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 for OWNER'S
use in filing applications for permits from or approvals of governmental
authorities having jurisdiction to review or approve the final design of the Project
and assist OWNER in consultations 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, itemized as
provided in paragraph Al ,01 .A.7.
4. Perform or provide the following additional final Design Phase tasks or
deliverables:
a. attend coordination meetings associated with the planning, data acquisition
or design of the project improvements;
b. meet with the OWNER'S staff to discuss and finalize design criteria and
acquire pertinent information regarding the Project;
First Amendment Page 6
c. coordinate the project improvements with other governmental entities and
private utilities;
d. research and gather existing relevant data on the project such as existing
utility information, information from petrochemical pipeline companies, and
drawings on existing main, as available;
e. contact private utility companies and other entities that may be involved to
obtain information on their existing facilities and requirements that may
impact this project;
f. utilize available record drawings on sanitary sewer lines designated for
rehabilitation for the design;
g. make contact and coordinate with pertinent utility and pipeline companies in
the project area to obtain available mapping of underground utilities in the
project area;
h, coordinate with Harris County Flood Control District and obtain approvals
for performing the proposed work;
i. coordinate with Texas Department of Transportation (*TxDOT") and obtain
approval for performing the proposed work.
j. prepare and submit traffic control plans utilizing TxDOT's standard traffic
control details;
k. perform field reconnaissance of the sanitary sewer main location areas to
obtain information on surface features and other information that would
impact construction cost and methodology of rehabilitation;
1. identify any easements necessary for the portion of sanitary sewer alignment
that will be installed parallel to the existing sewer;
m. perform detailed inspection and evaluation of the manholes along the project
alignment;
n. recommend suitable rehabilitation methods for manholes;
o. prepare project specifications, drawings, bid documents and construction
drawings based on anticipated improvements;
p. utilize LIDAR elevation data (data provided by Harris County) in
conjunction with the horizontal survey to prepare the plan drawings for the
segments recommended for trenchless rehabilitation;
q. perform topographic surveying in the areas of the proposed parallel line
segment;
r. complete coordination with other governmental entities or utility agencies in
regard to the project;
First Amendment Page 7
s. obtain approvals required by governmental authorities with jurisdiction over
the design and/or operation of the project and public and private utilities,
including pipeline companies affected by this project;
t. coordinate with Texas Commission on Environmental Quality (TCEQ)
during the design phase;
u. furnish necessary documentation to TCEQ for its review and approval;
v. coordinate and meet with construction contractors performing simitar work
and obtain information on construction costs, constructability issues and any
other items that would aid with the design;
w. identity construction equipment access routes needed for constructing the
proposed improvements;
x. provide the route information to the OWNER'S staff, which may include
routes through private property for which the OWNER will obtain needed
permissions prior to construction.
5. Perform or provide the following Special Final Design Phase tasks or
deliverables:
a. Permitting (USACOE)
1. review the jurisdictional assessment and report prepared during the
preliminary engineering phase and gather documentation from site visits
and from OWNER;
2. coordinate with United States Army Corps of Engineers staff and obtain
input on the project's permit requirements;
3. meet with United States Army Corps of Engineers staff in the field for
determining the project limits and the impact of the proposed
improvements on the wetlands; and
4. prepare the necessary documentation required for obtaining a permit
(Nationwide Permit) for performing the proposed work.
b. Geotechnical Investigation Services
1. Utilize a subconsultant to perform the additional Geotechnical
Investigation and amend the Report from the preliminary phase;
2. Field Exploration -Two borings will be drilled to an average depth of 30
feet below grade (10 feet below sanitary sewer) at the proposed location
of the parallel line crossing the East Fork of Goose Creek to evaluate
subsurface conditions. Due to the trenchless rehabilitation techniques
(limited excavation anticipated on this project) that will be utilized on
this project, soil borings taken as part of the preliminary engineering
phase will be utilized for the final design. Due to the nature of the sewer
line rehabilitation, borings at 500-foot intervals along the sanitary sewer
alignment will not be taken for this project;
First Amendment Page 8
3. Laboratory Testing -Soil mechanics laboratory testing will be performed
to measure physical and engineering properties of related representative
soil samples; and
4. Geotechnical Report -The geotechnical report provided during the
preliminary phase will be amended to include the results from this
investigation and will provide recommendations and construction
criteria.
c. Survey
1. Utilize a subconsultant to perform a horizontal survey to pick up
manholes along the sanitary sewer alignment. ENGINEER will utilize
the horizontal survey in conjunction with LIDAR elevation data to
prepare plan drawings.
2. Obtain topographical survey for proposed parallel line segment crossing
the East Fork of Goose Creek. The approximate length of topographic
survey to be performed is 500 feet.
d. Easement Document Preparation
1. Prepare easement documents as necessary for the installation of a parallel
line segment crossing the East Fork of Goose Creek along the project
alignment. The easement location will be determined based on final
alignment of the proposed parallel sanitary sewer trunk main.
2. Perform sufficient boundary survey to prepare the easement documents,
exclusive of those easements that the OWNER has obtained by
prescriptive right.
6. 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.
7. Submit five (5) sets of 50% and 90% project plans and specifications for review
by OWNER and provide updated cost estimates for the Project with each
submittal;
8. Incorporate OWNER'S comments as well as those from pertinent entities into the
50%, 90%, and 100% project plans and specifications and update the cost
estimates.
9. Submit 5 sets of final copies of the Bidding Documents and a revised opinion of
probable Construction Cost to OWNER within two hundred forty (?yft)
days after authorization to proceed with this phase.
10. (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.
First Amendment. Page 9
B. (Modified) ENGINEER'S services under the Design Phase will be considered
complete on the date when the final copies of the revised 100% project plans and
specifications have been delivered to and accepted by OWNER.
Al .02 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 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. Provide information to and answer questions from potential bidders;
3. Issue Addenda as appropriate to clarify, correct, or change the Bidding
Documents;
4. 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;
5. (Modified) Attend Mandatory Pre-Bid Conferences and Bid openings, prepare
Bid tabulation sheets, assemble contract documents;
6. Assist OWNER in both evaluating Bids or proposals and written
recommendation to award contracts for the Work; and
7. (Added) Assist in connection with Bid protests, rebiddmg, 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.
A1.03 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 B2.0U0, if any,
First Amendment. Page 10
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.
5. Visits to Site and Obseivation of Construction. In connection with
observations of Contractor's work 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 cany 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 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
First Amendment Page 11
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, Samples, and Submittals. Review and approve or take
other appropriate action in respect to Shop Drawings, Samples, Submittals
and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and
compatibility with the design concept of the completed Project as a
functioning whole as indicated in the Contract Documents, Such reviews
and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety
precautions and programs incident thereto. ENGINEER has an obligation
to meet any Contractor's submittal schedule that has earlier been
acceptable to ENGINEER.
10. 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. Decisions. (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
First Amendment. Page 12
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 Al .O4.A.5.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not (hereby 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
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
First Amendment. Page 13
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
A1.04.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 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. Attend project meetings for the duration of the prpj ect.
b. Provide the following construction evaluation services:
1. Review and evaluate pre-rehabilitation television inspection data
for 17,500 L.F. of sanitary sewer pipe provided by the
Contractor and verify the method of rehabilitation;
2. Provide documentation of the review and coordinate with the
Contractor during construction;
3. Coordinate with the City on the findings of the pre-rehabilitation
television inspection;
First Amendment. Page 14
4. Coordinate the rehabilitation efforts with the Contractor; and
5. Review post rehabilitation television inspection data of
approximately 17,500 L.F. of sanitary sewer pipe to verify
adequacy of the repair and provide a greater measure of quality
control.
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 Contractor.
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.
A1.04 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.
I. 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
First Amendment. Page 15
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.
N. Provide copies of daily observation reports prepared by OWNER'S on-site
representative, if any, to ENGINEER during construction phase.
m. Section C4.01 .A.1 of Article 4 of Exhibit "C" is hereby amended to read as follows:
C4.01 For Basic Services Having A Determined Scope -Cost not to Exceed Method
of Payment
1. (Modified)
a. (Modified) A cost not to exceed amount of $92.900.00 for
preliminary engineering services, based upon the rate schedule,
which is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes times a multiplier of 3.05. This
amount does not include those Engineer's Consultant's charges as
provided below in this Article 4, Subparagraph C4.05.
b. (Modified) A cost not to exceed the following for the phase of
services described, based upon the rate schedule, which is attached
as Appendix 3 of Exhibit C and incorporated herein for all intents
and purposes times a multiplier of 3.05. This amount does not
include those Engineer's Consultant's charges as provided below in
this Article 4, Subparagraph C4.05:
Final Design and Bidding Phases $ 179,800.00
Final Design Phase: Permitting (USACOE).... $ 10,500.00
Construction and Post-Construction Phases $ 56,175.00
Construction Phase: Construction Evaluation.. $ 13,700.00
n. Exhibit "C "Payments to ENGINEER for Services and Reimbursable Expenses," Article 4
"Payments to the ENGINEER," Section C4.04.A shall be 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
$1,000 for which the ENGINEER seeks reimbursement. Reimbursable
Expenses shall not exceed $1,000 for preliminary design phase services and
First Amendment Page 16
$3,000 for final design phase services for the Project, whether incurred by
the ENGINEER or ENGINEER'S consultent(s).
o. Exhibit "C" "Payments to ENGINEER for Services and Reimbursable Expenses," Article 4
"Payments to the ENGTNEER," Section C4.05 shall be amended to read as follows:
C4.05 For ENGINEER's Consultant's Charges
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 shall not exceed the following amounts specified for each
of the following services. The charges include the factor, and are as follows:
a. For Preliminary Design Phase Services:
Television Inspection $54,400.00
Phase I Environmental Site Assessment $ 4,290.00
Jurisdictional Assessment/Wetland Delineation $ 7,900.00
Geotechnical Investigation $ 8,690.00
Survey Control/ROW Research $10,670.00
b. For Final Design Phase Services:
Geotechnical Investigation $ 4,760.00
Survey Control/ROW Research $ 9,540.00
Easement Document Preparation $ 7,500.00
p. The following Exhibit E, which is attached hereto, is hereby added to this agreement and
incorporated herein for all intents and purposes.
3. Entire Agreement. The provisions of this 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 First Amendment and the provisions of the
Agreement, the provisions of this Second Amendment shall control,
4. 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
5. Captions. Captions contained in the Agreement, and First Amendment are for reference only and,
therefore, have no effect in construing the documents. The captions are not restrictive of the
subject matter of any section.
6. 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 in this First Amendment or in the Agreement shall be
construed in any way to limit or to waive the City's sovereign immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the same
amendment, this day of ; , 2008, the date of execution by the City
Manager.
CITY OF BAYTOWN
First Amendment. Page 17
ATTEST:
KAYTHIE DARNELL, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
ATTEST:
(Signature)
(Printed Name)
(Title)
By:
GARRISON C. BRUMBACK, City Manager
CLAUNCH &
By:
(Printed Name)
(Title)
R:\Karen\Files\EngineeringVEngineering Agreements\Claunch & MillcrVGoose Creek Sanitary Sewer Trunk Line ProjectVFirsiAmendment.doc
First Amendment Page 18
APPENDIX 3 OF EXHIBIT C
RATE SCHEDULE
Employee Classification
Officer
Senior Project Director
Senior Project Manager
Project Engineer
Project Engineer 1
Engineer in Training
Sr. Engineering Technician
Engineering Technician
CADD Manager
CADD Operator/Designer
Administrative Supervisor
Clerical
GIS Specialist
Billing Rate Range
$200.00/Hr.
$160.00 -$185.00/Hr.
$140.00-$180.00/Hr.
$120.00-$130.00/Hr.
$90.00-$110.00/Hr.
$70.00-$100.00/Hr.
$110.00-$14O.OO/Hr.
$70.00 -$90.00/Hr.
$95.00-$U5.00/Hr.
$75.00 -$100.00/Hr.
$90.00-$125.OO/Hr.
$40.00-$95.00/Hr.
$75.00 -$140.00/Hr,
Page I of 1 Pages
(Appendix 3 of Exhibit C -Hourly Rates)
This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER
and ENGINEER for Professional Services dated April 11,2007.
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:
OWNER
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.
By:.
Title:
Dated:
(Reverse side of Notice)
Page 1 of 2 Pages
Exhibit E -Notice of Acceptability of Work)
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 therunder 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.
Page 2 of 2 Pages
Exhibit E -Notice of Acceptability of Work)