Ordinance No. 10,934ORDINANCE NO. 10,934
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 THE TEXAS AVENUE STREETSCAPE-PHASE I PROJECT WITH
M1DTOWN ENGINEERING, LLC; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO
EXCEED TWO HUNDRED SEVENTEEN THOUSAND FIVE HUNDRED SEVENTY-FOUR
AND NO/100 DOLLARS ($217.574.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 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
construction management services associated with the Texas Avenue Streetscape -Phase I Project with Midtown
Engineering, LLC. A copy of said Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all
intents and purposes.
Section 2; That the City Council of the City of Baytown authorizes funds payable to Midtown
Engineering, LLC, in an amount not to exceed TWO HUNDRED SEVENTEEN THOUSAND FIVE HUNDRED
SEVENTY-FOUR AND NO/100 DOLLARS ($217,574.00) for environmental, final design, bidding and
construction phase services in accordance with the Agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease or an
increase in costs by TWENTY-FIVE THOUS AN D AND NO/I 00 DOLLARS ($25,000.00) or less, provided that the
amount authorized in Section 3 hereof may not be increased by more than twenty-live percent (25%).
Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of
the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City c/o/ncil of the City of Baytown this
the 24th day of July, 2008.
ATTEST:
KAY'IHIE DARNELL, City Clerk I
APPROVED AS TO FORM:
STEPtfENTTdONCARLOS , Mayor
VACIO RAMIREZ, SR., City Attorney
R:\Karen\Files\City Council\Ordi[);inces\2008liulY 24\l:inalDcsignofrexasAvenueSlreelScapePrajecUi(K:
ORDINANCE NO. 10.934
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 THE TEXAS AVENUE STREETSCAPE -PHASE I PROJECT WITH
MIDTOWN ENGINEERING, LLC; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO
EXCEED TWO HUNDRED SEVENTEEN THOUSAND FIVE HUNDRED SEVENTY-FOUR
AND NO/I 00 DOLLARS ($217,574.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City ofBaytOwn, 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
construction management services associated with the Texas Avenue Streetscape -Phase I Project with Midtown
Engineering, LLC. A copy of said Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all
intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes funds payable to Midtown
Engineering, LLC, in an amount not to exceed TWO HUNDRED SEVENTEEN THOUSAND FIVE HUNDRED
SEVENTY-FOUR AND NO/100 DOLLARS ($217,574.00) for environmental, final design, bidding and
construction phase services in accordance with the Agreement authorized in Section 1 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 3 hereof may not be increased by more than twenty-five percent (25%).
Section 4: This ordinance shall lake effect immediately from and after its passage by the City Council of
the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City (jfgtfncil of the City of Baytown this
the 24th day of July, 2008.
ATTEST:
—ir—■*—7i \—vlAA-/. ... —j=—i.-tf..— ^-—^_—^e» KAYTMIE DARNELL. City Clerk I
APPROVED AS TO FORM:
STEPHEN HTDONCARLOS , Mayor
fAClO RAMIREZ, SR., CityAttorney
R:\Karen\Files\City Coiiiici]\Ordinances\2008\July 24\FinalDesignon"exasAvenueStreetScapeProject,cloc
Exhibit "A"
FIRST AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS §
§
COUNTY OF HARRIS §
This First Amendment ("First Amendment") to the Standard Form of Agreement between
the City of Baytown and Midtown Engineers, LLC, dated June 12, 2007, is made by and between
the same parties on the date hereinafter last specified to authorize the services necessary to
provide an environmental study for the Texas Avenue Streetscape Project, Phase One (the
"Project").
WITNESSETH:
WHEREAS, the City of Baytown ("OWNER") and Midtown Engineers, LLC,
("ENGINEER") did enter into an Engineering Services Agreement, dated June 12, 2007
("Agreement"); and
WHEREAS, OWNER and ENGINEER desire to amend the contract again for
ENGINEER to provide environmental, 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 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 Texas Avenue
Streetscape Project, Phase One, which shall included (i) the preparation of a
Conceptual Design Report, which will incorporate various elements of design based
on the Downtown Master Plan: Area One, Design Guidelines, adopted by the City
Council and on design criteria from the Texas Department of Transportation, (ii) an
environmental study and (iii) design, bidding, construction, and post-construction
phase engineering services for the Texas Avenue Streetscape Project, Phase One
("Project").
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 1
b. Section 1.01 is hereby amended to add subsection C, which shall read as follows:
C. If authorized by OWNER, ENGINEER shall furnish Resident
Project Representative(s) with duties, responsibilities and
limitations of authority as set forth in Exhibit D.
c. 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.
d. 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.
e. 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.
f. 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.
g. Section 6.01 is hereby amended to add subsection J, which shall read as follows:
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 2
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
h. 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.
i. 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.
j. 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
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.
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 3
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 as the same are more specifically
identified in the Construction Agreement, together with all Written
Amendments, Change Orders, Work Change Directives, Field
Orders, and ENGINEER'S written interpretations and clarifications
issued on or after the Effective Date of the Construction Agreement.
Approved Shop Drawings and the reports and drawings of
subsurface and physical conditions are not Contract Documents.
14. Contract Price-The moneys payable by OWNER to Contractor for
completion of the Work in accordance with the Contract Documents
and as stated in the Construction Agreement.
15. Contract Times-The numbers of days or the dates stated in the
Construction Agreement to: (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
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 4
Work, normally one year after the date of Final Completion or such
longer period of time as may be prescribed by Laws or Regulations
or by the terms of any applicable special guarantee or specific
provision of the Contract Documents.
18. Defective--An adjective which, when modifying the word Work,
refers to Work that is unsatisfactory, faulty, or deficient, in that it
does not conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been damaged prior to
ENGINEER'S recommendation of final payment.
21. Effective Date of the Construction Agreement—The date indicated in
the Construction Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two parties to
sign and deliver.
24. Field Order-A written order issued by ENGINEER which directs
minor changes in the Work but which does not involve a change in
the Contract Price or the Contract Times.
25 Final Completion shall mean that all work has been completed, all
final punch list items have been inspected and satisfactorily
completed, all payments to subcontractors have been made, all
documentation and warranties have been submitted, all closeout
documents have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions-That part of the Contract Documents which sets
forth terms, conditions, and procedures that govern the Work to be
performed or furnished by Contractor with respect to the Project.
33. Record Drawings-The Drawings as issued for construction on
which the ENGINEER, upon completion of the Work, has shown
changes due to Addenda or Change Orders and other information
which ENGINEER considers significant based on record documents
furnished by Contractor to ENGINEER and which were annotated
by Contractor to show changes made during construction.
35. Resident Project Representative-The authorized representative of
ENGINEER, if any, assigned to assist ENGINEER at the Site
during the Construction Phase. The Resident Project Representative
will be ENGINEER'S agent or employee and under ENGINEER'S
supervision. As used herein, the term Resident Project
Representative includes any assistants of Resident Project
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 5
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.
41. Supplementary Conditions-That part of the Contract Documents
which amends or supplements the General Conditions.
42. (Modified) Total Project Costs-The sum of the Construction Cost,
allowances for contingencies, the total costs of services of
ENGINEER or other design professionals and consultants, cost of
land, rights-of-way, compensation for damages to properties,
OWNER'S costs for legal, accounting, insurance counseling or
auditing services, interest and financing charges incurred in
connection with the Project, and the cost of other services to be
provided by others to OWNER pursuant to Exhibit B of this
Agreement.
44. Work Change Directive-A written directive to Contractor issued on
or after the Effective Date of the Construction Agreement and
signed by OWNER upon recommendation of the ENGINEER,
ordering an addition, deletion, or revision in the Work, or
responding to differing or unforeseen subsurface or physical
conditions under which the Work is to be performed or to
emergencies. A Work Change Directive will not change the
Contract Price or the Contract Times but is evidence that the parties
expect that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued Change
Order following negotiations by the parties as to its effect, if any, on
the Contract Price or Contract Times.
k. 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.
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 6
1. Article 1, Part 1 of Exhibit A is hereby amended to add the following:
A.I.0075 (Added) Environmental Study Phase
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER'S requirements for the
Project and available data.
2. Identify, consult with, and analyze requirements of governmental authorities
having jurisdiction to approve the portions of the Project.
3. Perform or provide the following additional Environmental Study Phase tasks or
deliverables through its subconsultant Crouch Environmental Services, Inc.:
a. undertake the necessary environmental studies and investigations to
prepare a Categorical Exclusion (CE) document, anticipating approval by
the State and/or the Federal Highway Administration (FHWA) as
appropriate. The CE will be prepared in accordance with the National
Environmental Policy Act (NEPA) of 1969 and the Council on
Environmental Quality (CEQ) Regulations, FHWA Technical Advisory
(TA) T6640.8A, and the current version of the TxDOT Environmental
Manual.
b. acquire available information, including but not limited to, the
acquisition of design schematic(s) and copies of related documents for
projects that intersect or coincide with the project area.
c. coordinate early with the U.S. Fish and Wildlife Service (USFWS) and
the Texas Parks and Wildlife Department (TPWD) and obtain available
relevant information from appropriate local, state, and federal agencies,
which information includes, but is not limited to, surface hydrology,
floodplains, areas of tidal influence, National Wetlands Inventory maps
and/or existing wetland delineations, and other relevant data.
c. prepare the Categorical Exclusion, which task consists of the following:
(1) developing the CE and describing the proposed project and its
potential effects on the natural and human environment, by
(a) photographing and visually inspecting the existing conditions to
characterize the visible human and natural environment
conditions.
(b) performing field surveys, additional agency coordination, and
participation in supporting activities that lead to the completion,
acceptance, and approval of the final environmental document.
(2) addressing and describing the following using the outline prescribed
in the current version of the TxDOT Environmental Manual and in
accordance with the TxDOT/FHWA specifications and current
guidance, except as noted:
> Need and Purpose
> Traffic
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 7
> Design
> Congestion Management System
> Project Setting and Land Use
> Soils
> Vegetation
> Beneficial Landscape Practices
> Wildlife
> Essential Fish Habitat
> Socioeconomic Data, including Environmental Justice
considerations
> Threatened and Endangered Species
> Waters of the U.S., including Wetlands
> Historical and Archeological Resources
This scope of services assumes that:
• the Texas Department of Transportation (TxDOT)
Environmental Affairs Division (ENV) will perform all
historical structure surveys required by the Texas Historical
Commission (THC),
• ENV will be responsible for obtaining concurrence from
THC regarding these studies, and
• the results of the survey will be available for incorporation
into the CE.
A cultural resources screening letter for archeological resources
will be submitted to the THC for their concurrence. This scope
of services does not include field surveys or deep testing for
archeological deposits.
> Floodplains
> Coastal Zone Management
> Traffic Noise -This scope of services assumes that traffic noise
modeling will not be required.
> Air Quality -This proposal assumes that the project is exempt
from both a Transportation Air Quality Analysis and a Mobile
Source Air Toxics Analysis.
> Hazardous Materials -The Subconsultant will purchase a
hazardous materials database search report and summarize the
results of the report.
> Right-of-Way and Displacements -This scope of services
assumes that no new ROW would be acquired and therefore no
displacements would occur.
> Indirect and Cumulative Impacts.
(3) analyzing the issues referenced hereinabove, and
(4) preparing the CE.
8. Furnish two (2) review copies of the Preliminary Draft CE to OWNER within
sixty (60) calendar days of authorization to begin services and attend meetings as
necessary to review it with OWNER.
9. Revise the Preliminary Draft CE in response to OWNER'S and other parties'
comments, as appropriate, provide a written summary of the response to each
comment raised, and furnish six (6) review copies of the Draft CE to OWNER
and TxDOT -Houston District, within 10 calendar days of approval of the
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 8
preliminary draft CE and attend meetings as necessary to review it with the
OWNER and TxDOT.
10. Revise the Draft CE in response to OWNER'S and other parties' comments, as
appropriate; provide a written summary of the response to each comment raised;
and furnish twelve (12) copies of the Draft CE to the OWNER AND TxDOT -
Environmental Affairs Division (ENV) within ten (10) calendar days of approval
of the Draft CE and attend meetings as necessary to review it with OWNER and
TxDOT.
11. Revise the CE in response to comments received from OWNER, TxDOT -
Environmental Affairs Division (ENV), and other parties, as appropriate; provide
a written summary of the response to each comment raised; and furnish within
ten (10) calendar days of receipt of comments from TxDOT -Environmental
Affairs Division (ENV) eight (8) copies of the CE to Owner and the Federal
Highway Administration (FHWA) for the approval and attend meetings as
necessary to review it with OWNER and FHWA.
11. Revise the CE in response to comments received from FHWA; provide a written
summary of the response to each comment raised; and furnish eight (8) copies of
the Final CE to Owner within ten (10) calendar days after receipt of FHWA's
comments.
12. Obtain final approval of the CE from FHWA within thirty (30) calendar days
after submission of the Final CE to the FHWA.
10. Attend meeting(s) of the City Council to present the CE, answer any questions
and obtain the City Council's acceptance of the CE.
B. ENGINEER'S services under the Environmental Study Phase will be considered
complete on the date when the final copies of the approved CE have been delivered
to and accepted by OWNER.
A1.01 Design Phase.
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER'S requirements for
the Project and available data.
2. Advise OWNER as to the necessity of OWNER'S providing data or
services of the types described in Exhibit B which are not part of
ENGINEER'S Basic Services, and assist OWNER in obtaining such data
and services.
3. (Modified) Identify, consult with, and analyze requirements of
governmental authorities having jurisdiction to approve the portions of the
Project designed or specified by ENGINEER, including but not limited to
mitigating measures identified in the environmental assessment (if any).
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 9
Provide technical criteria, written descriptions, and design data as needed
for ENGINEER on behalf of the OWNER to file applications for permits
from or to obtain approvals of:
(1) utilities, pipeline, railroad companies and all other entities
that may impact the Project; and
(2) governmental authorities having jurisdiction to review or
approve the final design of the Project
and assist OWNER in consultations, if any, with appropriate authorities.
4. Identify and evaluate potential solutions available to OWNER; and, after
consultations with OWNER, recommend to OWNER those solutions
which in ENGINEER'S judgment meet OWNER'S requirements for the
Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated
boards, commission and/or governing body to receive input into
OWNER'S requirements for the Project and evaluate potential solutions
available to the Owner.
6. (Modified) Perform the following additional design phase tasks or
deliverables:
a. Prepare concept sketches for intersection paving designs and
coordinate details with OWNER;
b. Update site furnishing selections and fixture selections;
c. Provide a topographic survey of the Project, including horizontal and
vertical control;
d. Provide geotechnical investigation to determine pavement type and
depth and include recommendations for utility trenching, backfilling
and dewatering;
e. Prepare Plans, Specifications and Construction Cost estimates
("PS&E") in accordance with TxDOT criteria. PS&E to include
roadway, sidewalks, utilities, lighting, streetscape amenities, landscape
and irrigation and underground electrical facilities for lighting and
special events. 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;
f. Conduct a design concept conference, utility cooperative management
process and traffic control workshop per TxDOT requirements;
g. Submit PS&E to Texas Department of Licensing and Regulation as
appropriate and obtain its approval; and
h. Prepare additional line items in the Bid Tabulations 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 to the Standard Form
of Agreement between Owner and Engineer. Page 10
7. Furnish five (5) review copies of the Draft PS&E to OWNER at 50%
completion within 150 calendar days of authorization to begin services
and review it with OWNER, which shall include, but not be limited to:
a. base file drawings
b. 50% planting plan
c. 50% irrigation drawings consisting of mainline, sleeve, controller and
meter location
d. 50% site furnishing plan
e. 50% landscaping specifications and estimate in TxDOT format.
8. Furnish five (5) review copies of the Draft PS&E to OWNER at 90%
completion within 45 calendar days from receipt of comments from
OWNER and TxDOT from the 50% PS&E, which shall include, but not
be limited to:
f. base file drawings
g. 90% planting plan
h. 90% irrigation drawings consisting of mainline, sleeve, controller and
meter location
i. 90% site furnishing plan
j. 90% landscaping specifications and estimate in TxDOT format.
9. Furnish five (5) review copies of the PS&E and the Bidding Documents to
OWNER and Bidding Documents at 100% completion within 30 calendar
days from receipt of comments from OWNER and TxDOT from the 90%
PS&E, and review it with OWNER, its legal counsel and other advisors as
appropriate and assist in the preparation of other related documents, which
shall include, but not be limited to,
a. 100% planting plan and details on Mylar
b. 100% irrigation drawings consisting of mainline, sleeve, controller and
meter location on Mylar
c. 100% site furnishing plan on Mylar
d. 100% landscaping specifications and estimate in TxDOT format.
10. Revise the PS&E and Bidding Documents in response to OWNER'S and
other parties' comments, as appropriate, and furnish five (5) final copies
of the revised PS&E and the Bidding Documents to the OWNER within
fifteen (15) calendar days after completion of review with OWNER and
TxDOT.
B. (Modified) ENGINEER'S services under the Design Phase will be considered
complete on the date when the final copies of the revised PS&E has been
delivered to and accepted by OWNER.
A1.02 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
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 11
Phase, and upon written authorization by OWNER to proceed, ENGINEER
shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating
proposals for the Work and, where applicable, provide 15 sets of
plans and specifications for each bid package.
2. Issue Addenda as appropriate to clarify, correct, or change the
Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors,
suppliers, and other individuals and entities proposed by Contractor
for those portions of the Work as to which such acceptability is
required by the Bidding Documents.
4. (Modified) Attend Mandatory Pre-Bid Conferences and Bid
openings, prepare Bid tabulation sheets, assemble contract
documents, assist OWNER in both evaluating Bids or proposals and
written recommendation to award contracts for the Work.
5. (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.
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 B2.01.0, if any.
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 12
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 Observation of Construction. In connection with
observations of Contractor's work in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to
the various stages of construction, appropriate to verify
Contractor's payment requests, and as ENGINEER and/or
OWNER deems necessary, in order to observe as an
experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by
ENGINEER, and the Resident Project Representative, if
any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve
detailed inspections of Contractor's work in progress beyond
the responsibilities specifically assigned to ENGINEER in
this Agreement and the Contract Documents, but rather are
to be limited to spot checking, selective sampling, and
similar methods of general observation of the Work based on
ENGINEER'S exercise of professional judgment as assisted
by the Resident Project Representative, if any. Based on
information obtained during such visits and such
observations, ENGINEER will determine if Contractor's
work is proceeding in accordance with the Contract
Documents, and ENGINEER shall keep OWNER informed
of the progress of the Work.
b. (Modified) The purpose of ENGINEER'S visits to, and
representation by the Resident Project Representative, if any,
at the Site, will be to enable ENGINEER to better carry out
the duties and responsibilities assigned to and undertaken by
ENGINEER during the Construction Phase, and, in addition,
by the exercise of ENGINEER'S efforts as an experienced
and qualified design professional, to provide for OWNER a
greater degree of confidence that the completed Work will
substantially conform to the Contract Documents and that
the integrity of the design concept of the completed Project
as a functioning whole as indicated in the Contract
Documents has been implemented and preserved by
Contractor. ENGINEER shall not, during such visits or as a
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 13
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 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
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 14
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 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
First Amendment to the Standard Form
of Agreement between Owner and Engineer, Page 15
such payment appear to have been fulfilled in so far as it is
ENGINEER'S responsibility to observe Contractor's work.
In the case of unit price work, ENGINEER'S
recommendations of payment will include final
determinations of quantities and classifications of
Contractor's work (subject to any subsequent adjustments
allowed by the Contract Documents). The responsibilities of
ENGINEER contained in paragraph A1.04.A.5.a are
expressly subject to the limitations set forth in paragraph
A1.04.A.5.b and other express or general limitations in this
Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not
thereby be deemed to have represented that observations
made by ENGINEER to check the quality or quantity of
Contractor's work as it is performed and furnished have
been exhaustive, extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the
Work beyond the responsibilities specifically assigned to
ENGINEER in this Agreement and the Contract Documents.
Neither ENGINEER'S review of Contractor's work for the
purposes of recommending payments nor ENGINEER'S
recommendation of any payment including final payment
will impose on ENGINEER responsibility to supervise,
direct, or control Contractor's work in progress or for the
means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident
thereto, or Contractor's compliance with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work. It will also not impose responsibility
on ENGINEER to make any examination to ascertain how
or for what purposes Contractor has used the moneys paid
on account of the Contract Price, or to determine that title to
any portion of the work in progress, materials, or equipment
has passed to OWNER free and clear of any liens, claims,
security interests, or encumbrances, or that there may not be
other matters at issue between OWNER and Contractor that
might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating
instructions, schedules, and guarantees as prepared by the
Contractor in accordance with the Contract Documents.
Engineer will compile this information as provided by
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 16
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 A 1.04.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. Attendance at project meetings for the duration of the project.
17. (Modified) Final Notice of Acceptability of the Work. Conduct a
final inspection to determine if the completed Work of Contractor is
acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for
final payment, ENGINEER shall also provide a notice in the form
attached hereto as Exhibit E (the "Notice of Acceptability of Work")
that to the best of ENGINEER'S knowledge, information and belief
and upon the exercise of ENGINEER'S due diligence, the Work is
acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence
with the execution of the first Construction Agreement for the Project or
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 17
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 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.
m. Section B2.01 of Exhibit "B" is hereby amended to add the following subsections,
which shall read as follows:
K. Furnish to ENGINEER data as to OWNER'S anticipated costs for services
to be provided by others for OWNER so that ENGINEER may make the
necessary calculations to develop and periodically adjust ENGINEER'S
opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual
or entity other than, or in addition to, ENGINEER to represent OWNER at
the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties,
responsibilities, and authority of ENGINEER.
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 18
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.
n. 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
A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit
A as follows:
1. (Modified)
a. For the services described in Exhibit A Section A 1.005, a cost
not to exceed amount of $23.174.00. based upon the rate
schedule, which is attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes.
b. For the services described in Exhibit A Section A1.0075, a cost
not to exceed amount of $18.513.00. which total is based upon
the rate schedule, which is attached as Appendix 3 of Exhibit C
and incorporated herein for all intents and purposes, times a
factor of 1.1.
c. For the services described in Exhibit A Section A 1.01, a cost
not to exceed amount of $76.620.00. based upon the rate
schedule, which is attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes.
d. For the services described in Exhibit A Section A 1.02, a cost
not to exceed amount of $5.390.00. based upon the rate
schedule, which is attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes.
e. For the services described in Exhibit A Sections A1.03 and
A 1.04, a cost not to exceed amount of $22.360.00. based upon
the rate schedule, which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and purposes.
o. 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:
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 19
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 the following for each phase of the Project:
Conceptual Design Phase $5,000.00
Environmental Study Phase $2,677.00
Design Phase $5,400.00
Bid Phase $5,250.00
Construction and Post Construction Phases $ 350.00
Exhibit "C" "Payments to ENGINEER for Services and Reimbursable Expenses,"
Article 4 "Payments to the ENGINEER," 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 a cost not
to exceed the following amounts specified for each phase and service:
Conceptual Design Phase $17,990.00
(Based upon the rate schedule, which is attached as Appendix 3
of Exhibit C and incorporated herein for all intents and purposes)
Environmental Study Phase NONE
Design Phase $56,514.00
Landscape Architect $29,300.00
Surveying $15,114.00
Geotechnical $ 2,900.00
Electrical Design $ 9,200.00
Bid Phase $ 6,500.00
Landscape Architect $4,000.00
Electrical Design $2,500.00
Construction and Post Construction Phases $18,000.00
Landscape Architect $10,500.00
Electrical Design $ 7,500.00
The following Exhibit E, which is attached hereto, is hereby added to this agreement
and incorporated herein for all intents and purposes.
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 20
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 First 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 the 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
By:
GARRISON C. BRUMBACK, City Manager
ATTEST:
KAYTHIE DARNELL, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 21
ATTEST:
(Signature)
(Printed Name)
(Title)
MIDTOWN ENGINEERS, LLC
By:
(Signature)
(Printed Name)
(Title)
R:\Karcn\Filcs\Engineering\Engineering Agreements\Midtovvn EngineersYTcxas Avenue Slreetscape Project\NewFirstAmendment.doc
First Amendment to the Standard Form
of Agreement between Owner and Engineer. Page 22