Ordinance No. 11,210 ORDINANCE NO. 11 ,2 10
AN ORDINANCE Of- TI LE CITY COUNCIL OF THE CITY OF BAYTOVI Is]_ TEXAS.
AUTHORIZING THE FIRS-1- AMENDMENT' TO THE STANDARD FORM OF
AGRE:ENIEN'1' WITH JONES & CARTER_ 1NC__ FOR TI-IE 1=INAL DESIGN OF -I-HE
STEINMAN LIFT STATtON PROJECT_ AUTHORIZING ADDITIONAL PAYMENT
I3Y THE- CITY OF BAYTOtt'N OF AN AMOUNT NOT TO EXCEED SEVEN
HUNDRED FIFTY-SEVEN THOUSAND SEVEN 1--IUNDREO AND N0/100
DOLLARS ($757,700.00): .AND PROVIDING FOR THE EFFECTIVE: DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF -1-I IE CITY OF BAYTOWN_ 'f1 XAS:
Section 1: That the City Council of the City of Baytown. Texas_ hereby authorizes the City
Manager TO execute and the Interim City Clerk to attest to the First Amendment to the Standard Forn-r of
Agreement with Jones & Carter_ Inc., for the final design of the Steinman Lift Station Project. A copy of
the First Amendment is attached hereto as Exhibit "A" and incorporated herein for all intents and
purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Jones
Carter. Inc., of an amount not to exceed SEVEN HUNDRED ]=IFFY-SEVEN THOUSAND SEVEN
HUNDRED AND NO/100 DOLLARS ($757,700.00), pursuant to the First Amendment.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of TWENTY-FIVE THOUSAND AND NO/100
DOLLARS ($25,000.00) or less: however, the Original contract price may not be increased by more than
twenty-five percent (251/6) or decreased by more than twenty-five percent (25%) without the consent of
the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and alien its passage by the
City Council of the City of Bayto%vn.
tNTRODUCED. READ and PASSED by the affirmative vote of th City Council of the City of
Baytown this the 24tr'day of September_ 2009.
STE _ DONCARLOS, ayor
O M
I. ; ZA_ 1 erim C' v terk
ED AS TO FOKNI:
AC10 RAMIREZ_ SR.. Cit ttornev
\\cohsr� I\lesal�aren Fibs\City Counc Urdinances\2009\September 24\Jones&CarterIstrlmendment4Steimrwi)I.illStatiun-dtic
Exhibit "A"
FIRST AMENDMENT
TOTHF.
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FORYROFESSI ONAL SERVICES
STATE OF TEXAS §
5
COUNTY OF HARRIS §
This First Amendment ("First Amendment-) to the Standard Form of Agreement between the
City of Baytown and Jones & Carter, Inc.. dated January 21, 2009, 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 Steinman Lift Station Project(the'`Project").
W ITNESSETH:
WHEREAS, the City of Baytown ("OWNER") and Jones & Carter, Inc., ("ENGINEER") did
enter into an Engineering Services Agreement, dated January 21, 2009. in an amount not to exceed
FORTY-NINE THOUSAND AND NO/100 DOLLARS($49,000.00) ("Agreement");and
WHEREAS, OWNER and ENGINEER desire to amend the Agreement for ENGINEER to
provide design, bidding, construction, and post-construction phase engineering services for the Project:
and
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained,the parties hereto do hereby mutually agree as follows:
I. Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this First Amendment shall have the same meanings as in the Agreement.
�. Amendments
a. The scope of the ser ices to be performed by the ENGINEER is hereby .upended to include
the design, bidding, construction, and post-construction phase engineering services for the
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 vvith 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 long
rr delayed by OWNER. FNGINF..F'R
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 fir the accuracy of opinions of
Total Project Costs.
d. Section 6.01 is hereby amended to add subsection G,which shall read as follows:
I:irst Amendment,Page I
G. Prior to the commencement of the Construction Phase. OWNER shall
noti6- ENGINEER of any variations from the language indicated in
Exhibit E. "Notice of Acceptability of Work," or of any other notice or
certification that FNGINEFR 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 1,which shall read as follows.
1. Durine 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 herebv 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
ENGINEE-R's services under this Agreement.
a. 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 wvhich 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. Livloditied) 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 7.0I.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 perlorrned.
First Amendment,Page 2
8. Bidding Documents--The advertisement or invitation to Bid, instructions
to bidders. the Bid form and attachments, the Bid bond, if tiny, the
proposed Contract Documents,and all Addenda,if any.
9. Change Order--A document recommended by ENGINEER, which is
signed by Contactor 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.
It, 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 EfTective Date of the Construction Agreement. Approved Shop
Drawings and the reports and drawings of subsurfitce and physical
conditions are not Contract Documents.
td. Contact Price--The moneys payable by OWNER to Contractot 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 Agyreement to: (i):achieve Final Completion, and (ii)
complete the Work sip that it is read% for final payment as evidenced by
ENGINEER's written recommendation of final payment.
First Amendment.Page 3
16. Contractor--An individual or entity with whom OWNER enters into a
Construction Agreement.
17. Correction Period--The time alter 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 tenns of
any applicable special guarantee or specific provision of ttae Contract
Documents.
13. 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.
31. L"-fTectivc 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 ill the Contract
Price or the Contract Times.
n5. Final Completion shall mean that all work has been completed, all final
punch list items have been inspected and satisfactorily crmapleled, 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.
36. 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 Dra«ings 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 ENGINLER'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 ate as set
forth in Exhibit D.
First Amendment Page 4
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 ENGINEERt 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 put 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 time cost of
other services to be provided by others to OWNER pursuant to Exhibit B
of this Aureenment.
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 Tinos 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 vsvo("_')pages.
k. Article 1,Part I of Exhibit A is hereby amended to add the following:
A1.015 Preliminnr} Engineering Phase Il
A. After acceptance b% 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, mid upon written authorization
from OWNER,ENGINEER shall:
I. Consult with OWNER to define and clarify OWNER'S additional
requirements for the Project and available data not identified within the
Preliminary Design Phase.
First Amendment.Page 5
2. Advise OWNER as to the necessity of the OWNER's providing data or
services of the types described in Exhibit B. which are not pan of
ENGiNEER's Basic Services. and assist OWNER in obtaining such data and
services.
3. Identify, consult with, and analyze requirements of governmental authorities
having jurisdiction to approve the portions of the Project designed or specified
by the ENGINEER.
4. Attend meetings with OWNER and OWNER'S consultants.designated boards,
commissions andlor city council to receive input into OWNER'S requirements
for the Project and evaluate potential solutions available to Owner.
S, Perform or provide the following additional Preliminary Engineering Phase
tasks or deliverables:
a. ENGINEER will drive the alignment of the selected force main identified
within the PER to identify known above- and under-ground conflicts.
request and review dry utility maps, review available City of Baytown
construction documents for existing public utilities. coordinate and add
information provided by the "one-call" systems, communicate with other
public agencies regarding planned infrastructure improvements that may
conflict with the location of the existing and proposed force main, and
determine if any sub-surface explorations are deatled necessary.
b. Contact utility and pipeline companies with facilities near the site to obtain
maps of existing facilities. It necessary, the f:ngineer will coordinate with
the pipeline'utility companies to have these facilities located in the field.
c. Provide a complete design survey for the Project including required
topography and site boundary infonnation. The Survey shall provide
complete horizontal and vertical control as well as show ownership,
encumbrances,recorded easement information,existing infrastructure.and
topographic information for construction of the proposed lili station and
selected force main alignment. ENGINEER will assist in obtaining the
casements identified within the PER: however. if it becomes necessary lbr
the City to acquire additional easements or right-of-ways or if the selected
alignment must deviate significantly from the PER, the Engineer will
perform survey work and prepare a legal description for an additional fee.
d. Provide a geotechnical investigation (under a subconsultant agreement
with Aviles Engineering Corp.) for the proposed lift station improvements
and selected force main alignment. The purpose of the investigation will
be to evaluate the near surface geological conditions and to provide
geotechnical conclusions and design recommendations regarding the
proposed improvements. Investigation will address: general soil and
geologic conditions; recommendations for structures and force main
design; depth to groundwater or seepage; excavation considerations;
pavement design recommendations, recommendations lbr trenching and
shoring. foundation design,select till requirements and bearing strength.
e. Provide an investigation to prepare a Phase 1 Emirontnental Site
Assessment, Wetland Delineation, Wetland Verification, threatened and
First.Amendment,Pagc 6
Endangered Species Assessment, I fistorical. Cultural and Archaeological
Assessment, and Vegetation Impacts Assessment (under a subconsultant
agreement with Berg Oliver Associates. Inc.) for the proposed lift station
improvements site and selected force main alignment to determine whether
any recognized environmental concerns exists and provide details on
potential regulatory impacts and risk. If' additional work is required or
recommended based on the Phase 1 Environmental Site Assessment(Phase
I ESA) for determination of impact or compliance these can be completed
for an additional fee. Services not within the scope of it Phase I ESA
include but are not limited to: preparing. coordinating, and obtaining a
Clean Water Act Section 404 from the USACE or an Archeological
Pedestrian Survey.
6. Prepare a preliminary submittal of 50% drawings for the proposed lift station
improvements and force main (the "50% Submittal") which will, as
appropriate,contain schematic layouts illustrating the scale and relationship of
the improvements.sketches. approximately six (6)easement parcel documents
(number based on preliminary engineering report). schedule ol'events. and
conceptual design criteria with appropriate exhibits to indicate those solutions
identified in the PER and available to OWNER which ENGINEER
recommends,Preliminary selections of construction materials shall be noted on
the drawings or otherwise described in writing in the Submittal. The 500/.
Submittal will be accompanied by ENGINEER's opinion ol'the Total Project
Costs for each solution which is so recommended for the Project with each
major component separately itemized, including the following, which will be
separately itemized: opinion of probable Construction Cost, allowances for
contingencies and for the estimated total costs of design. professional, and
related services provided by ENGINEER and, on the basis of inl'onnation
furnished by OWNER,allowances for other items and services included within
the definition of Total Project Costs.
7. Furnish three (3) review copies of the iO% Submittal to OWNER within one-
hundred sixty ()60) calendar days of authorization to being services and
review it with OWNER.
A 1.07 final Design►Phase.
A. After acceptance be OWNER of the Preliminary Design Phase 11 documents and
revised opinion of probable Construction Cost as determined in the Preliminary Design
Phase 11, but subject to any OWNER-directed modifications or changes in the score,
extent, character, or design requirements of or for the Project, and upon written
authorization from OWNER. ENGINEER shall:
I. Oklodified) 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, including quality level for major
materials. 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.
3. Provide technical criteria, written descriptions, and design data for OWNER's
use in tiling 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.
First Amendment,Page 7
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 A 1.01-5.A.6.
4. Perform or provide the folio%%ing additional final Design Phase tasks or
deliverables:
a. ,-'Acquire plan approvals from the City, Harris County,pipeline companies, all
utility companies and the Texas Commission on Environmental Quality.
b. Coordinate with the local service providers to confirm adequacy of electrical
service Capacity.
�. •lake appropriate recommendations to the OWNER to adjust the Project size,
quality or budget if at any time the ENGINEER's estimate of the probable
Construction Cost or Total Project Costs exceed the OWNER'S budget.
6. Prepare storm water pollution prevention plan.and traffic control plan.
7. Provide six full size sets of 90% documents for the OWNF.R's review and
comment within 160 calendar days of authorization to begin final design services
and review it with the OWNER.
8. Revise the documents in response to OWNER's and other parties' comments. as
appropriate.
9. Provide three (3) full-size sets of 100't'o Bidding Documents for the OWNER's
review and comment within 43 calendar days after receiving OWNER'S
comments on the 90%documents.
10. Revise the documents in response to OWNER's and other parlies' comments, as
appropriate and furnish 15 final copies of the revised 100% Bidding Documents
and a revised opinion of probable Construction Cost to the OWNER within ten
days after completion reviewing the 100% Bidding Documents with OWNER.
B_ (Modified) ENGINEER's services under the Design Phase will be considered
complete on the date when the final copies of the revised 100% Bidding Documents
have been delivered to and accepted by OWNER.
A 1.02 Bi(Ming or.Vegoriaring 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:
I. :Assist OWNER in advertising for and obtaining bids or negotiating proposals
for the Work and,where applicable;
2. Provide information to and answer questions from potential bidders;
3. Issue Addenda as appropriate to clarify, correct, or- change the Bidding
Documents;
First Amendment.Nee 8
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;
i. (Modified)Attend Mandatory Pre-Bid Conferences and Bid Openings, prepare
Bid tabulation sheets.assemble contract documents;
b. 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, rebidding, or re-negotiatingg,
contracts for construction,materials,equipment,or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon
commencement of the Construction Phase.
A 1.033 Construchorr Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon
written authorization from OWNER,ENGINEFR shall:
I. General Ad►ninisrration ofConstruetian 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«Tiling.
2. (Modified)Selecting lndependew Testing Laboratory. Assist OWNER in
the selection of an independent testing laboratory to perform the services
identified in paragraph B2.01,if any.
Are-Construction L'v>>irerrc e. Participate in a Pre-Construction
Conference prior to commencement of Work at the Site.
4. Baselines and Benchnn7rkt. As appropriate, establish baselines and
benchmarks for locating the Work which in ENGINEER's judgment are
necessary to enable Contractor to proceed.
i. Pisits to Site and Observation of Consn•tcction. In connection with
observations of Contractor's work while it is in progress:
a. (Modified) Make visits to the Site at Fast once a week and at
intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as
ENGINEER andor 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
First.Amendment.Pace 9
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. [lased on information obtained during such visits and such
observations, ENGINEER will determine if Contractor's work is
proceeding in accordance with the Contract Documents, and
ENGINEER shall keep OWNER informed of the progress of the
Work.
b. (Modified) The purpose of ENGINEER's visits to, and
representation by the Resident Project Representative, if any, at
the Site, will be to enable ENGINEER to better carry out the
duties and responsibilities assigned to and undertaken by
ENGINEER during the Construction Phase, and, in addition, by
the exercise of ENGINEER's efforts as an experienced and
qualified design professional, to provide for OWNER a greater
degree of confidence that the completed Work will substantially
conform to the Contract Documents and that the integrity of the
design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and
preserved by Contractor. ENGINEER shall not,during such visits
or as a result of such observations of Contractor's work in
progress, supervise, direct, or have control over Contractor's
work, nor shall ENGINEER have authority over or responsibility
for the means, methods, tcchniqucs, sequences, or procedures of'
construction selected by Contractor, for safety precautions and
prograrns incident to Contractor's work, or I'or 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) Defecdve 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 confon»s 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 Conlr•uct Documents.
7. Clarifications arid /nterprerurians: 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 authoririne minor variations from the requirements of the Contract
Documents.
First Amendment,Page 10
8. Change Orders and ]fork Change Directives. Recommend Change
Orders and Work Change Directives to ONVNER, as appropriate, and
prepare Change Orders and Work Change Directives as required.
9. Shop Draxhkgs, Samples, and SubtnittaA. Review and approve or take
other appropriate action in respect to Shop Drawings, Samples, Submittals
vtd 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. ENGINFER'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. Arl .plications.for Paymtent. Based on L•NGINEER's observations as an
experienced and qualified design professional and on review of'
Applications for I'avment and accompanying supporting documentation:
.1. Determine the amounts that ENGINEER recommends Contractor
be paid. Such recommendations ot'payment will he in writing and
will constitute ENGINE ER'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 final inspection, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications
First Amendment.P;3,,e I I
stated in the recommendation). and the conditions precedent to
Contractor's being entitled to such payment appear to have been
fulfilled in so tar 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:-.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 tilt'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 ENGMEER 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 exarnination to
ascertain how or for what purposes Corttratctor 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 ONVNER 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. C'onu-uctor•'s Completion Dociane rts.
a. 0.1odified) 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, :uid
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
First Arnendment Pare 12
ENGIINEER's review will be limited as provided in paragraph
A 1.G4.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. Pinal t'nspection. 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 complete. if after considering any objections of OWNER, ENGINEER
considers the Work complete, ENGINEER shall deliver Notice of
Acceptability of Work to OWNER and Contractor.
16. Record Info"waion. ENGINEER shall review the Operations and
Maintenance Manuals and the record drawings provided by the Contractor
for confomtance with the Contract Documents and accurate representation
of the equipment supplied by the Contractor. ENGINEER shall provide
the approved Operations and Maintenance Manuals, the record drawings,
and other submittals to the OWNER as well as electronic as-built drawings
for the completed Project,in a format acceptable to the OWNER.
17. (Modified) Final Xutice gfAcceptabilitp of the Work. Conduct a final
inspection to determine if the completed Work of Contractor is acceptable
so that ENGINEFiZ may recommend. in writing, final payment to
Contractor. Accompanying the recommendation for linal 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
ENGIINEER's knowiedge. 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 UfConstruction 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. LIndiation 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 perforn or furnish the
Work in accordance with the Contract Documents.
A 1.04 Post-C'onsn•ttcrion Phase
A. Upon written authorization from OWNER. ENGINEER. during the Post-
Construction Phase,shall:
1. Together tivith OW-NER. visit the Project to observe any apparent defects
in the Work, assist OWNER in consultations and discussions with
First Amendment,Pace 13
Contractor concerning correction of any such defects, and make
recommendations as to replacement or correction of I)efective 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 O%NER'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. (.Iodified) I(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, pre-construction conferences, construction progress
and other job related meetings,and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNEIt's on-site
representative, if any,to ENGINEER during construction phase.
nt. Section C4.01.A.I of Article 4 of Exhibit"C"is hereby amended to read as follows:
C4.01 For Basic Services Hcwfng:l Determined Scol)e—Cotr not it?&c•eed Method
of Payment
1. (Modified) A cost not to exceed amount of$604,600 based upon the rate
schedule. «hich is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes. This amount does not include those
Engineer's Consultant's charges as provided below in this Article 4,
Subparagraph C4.0-5. The Cost not to exceed will be distributed at the
completion of each of the phases in an amount not exceeding the
following for each phase:
a. Preliminary Design Phase.......................................$ 45,100
b. Preliminary Design Phase 11....................................$ 128.000
c. Final Design Phase..................................................$;25,000
d. Bidding:'Ne_otiation Phase......................................S 15.000
e. Construction Phase..................................................$ 90.000
f. Post-Construction Phase..........................................S 1.500
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 llollows:
First Amendment,Page 14
C4.04 For Reimbursable F_petnes
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
$1,000 for which the ENGINEER seeks reimbursement, Reimbursable
Expenses shall not exceed the following for each phase for the project,
whether incurred by the ENGINEER or ENGINEER's consultant(s):
a. Preliminary Design Phase.........................................$ 3.900
b. Preliminary Design Phase;It......................................S 9.000
c. Final Design Phase....................................................S 1`.000
d. Bidding.Negotiation Phase..................................................0-
e. Construction Phase....................................................S 8,000
f. Post-Construction Phase.............................................S 200
o. Exhibit "C" "Payments to ENGINEER for Services and Reimbursable Expenses," Article 4
"Pavments to the ENGINEER," shall be amended to add Section C4.05, which shall read as
follows:
C4.05 1 or E:VGIA'EER's Cor,sulrant's ChL-ire-es
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, anti are as follows:
Geotechnicai............. .. ...................................................S50,000
Structural ..........................................................................S50,000
Environmental...................................................................$20,000
p. Exhibit E, which is attached hereto, is hereby added to this agreement and incorporated
herein for all intents and purposes.
+, 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
Captions. Captions contained in the Agreement,and First Amendment are for reference only and,
therefore. have no effect in construing the documents. The captions Lite not restrictive of the
subject matter of any section.
U. No Waiver. By this First Amendment, the Owner does not consent to litigation or suit. and the
Owner hereby-.xpressly 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,
first Amendment,Page 15
or applicable state la%%. 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 2009, the date of execution by the City
Manager,
CITY OF RAYTOWN
By:
GARRISON C,BRUMBACK.City Manager
ATTEST:
1..F.TICIA GARZA, Interim City Clerk
APPROVED AS TO FOR'11:
IGNACIO RAMIRE7_,SR., City Attorney
!ONES d_ CART NC.
Bs:
(Signature) /
C.42 e v
(Printed Name)
(Title) _
Co>�
A*rresr:
(Signature)
(Printed Name)
(Title)
Hiss Amendment.Paae 16
This is EXRIBIT E, consisting of 2 pages.
referred to in and part of the Agreement
between OWNER and ENGINEER for
Professional Services dated January 21,2007.
Initial:
OWN ER
ENGINEER
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREELMENT:
CONSTRUCTION CONTRACT DATE-:
LNG INEER:
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 ofthe related Contract Documents and the terms and conditions set
north on the reverse side hereof.
By:
Title:
Dated:
P.i,e l of2 Paves
(Exhibit E -Notice of Acceptability of Work)
(Reverse side of Notice)
CON DI PIONS OF NOTICE OFACCEPTABILITY 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:
I. 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 beliefas 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 ol'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.
3. (Modified)Said Notice is not a guarantee or warranty of CONTRAC'i'OR's performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish
and perlirm the work thertmder 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
Docurttents.
Page 2 of 2 Pages
(Exhibit E - Notice of Acceptability o►'Work)
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 Jones & Carter, Inc., dated January 21, 2009, 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 Steinman Lift Station Project(the"Project").
WITNE S SETH:
WHEREAS, the City of Baytown ("OWNER") and Jones & Carter, Inc., ("ENGINEER") did
enter into an Engineering Services Agreement, dated January 21, 2009, in an amount not to exceed
FORTY-NINE THOUSAND AND NO/100 DOLLARS ($49,000.00) ("Agreement"); and
WHEREAS, OWNER and ENGINEER desire to amend the Agreement for ENGINEER to
provide design, bidding, construction, and post-construction phase engineering services for the Project;
and
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.
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:
First Amendment,Page 1
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:
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.
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:
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.
First Amendment,Page 2
8. Bidding Documents--The advertisement or invitation to Bid, instructions
to bidders, the Bid form and attachments, the Bid bond, if any, the
proposed Contract Documents,and all Addenda,if any.
9. Change Order--A document recommended by ENGINEER, which is
signed by Contractor and OWNER to authorize an addition, deletion or
revision in the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of the Construction
Agreement.
10. Construction Agreement--The written instrument which is evidence of the
agreement, contained in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract--The entire and integrated written agreement
between the OWNER and Contractor concerning the Work.
12. Construction Cost--The cost to OWNER of those portions of the entire
Project designed or specified by ENGINEER. Construction Cost does not
include costs of services of ENGINEER or other design professionals and
consultants, cost of land, rights-of-way, or compensation for damages to
properties, or OWNER's costs for legal, accounting, insurance counseling
or auditing services, or interest and financing charges incurred in
connection with the Project,or the cost of other services to be provided by
others to OWNER pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. (Modified) Contract Documents--Documents that establish the rights and
obligations of the parties engaged in construction and include the
Construction Agreement between OWNER and Contractor and all
documents referenced therein, Addenda (which pertain to the. Contract
Documents), Contractor's Bid (including documentation accompanying
the Bid and any post-Bid 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.
First Amendment,Page 3
16. Contractor--An individual or entity with whom OWNER enters into a
Construction Agreement.
• 17. Correction Period--The time after Final Completion during which
Contractor must correct, at no cost to OWNER, any Defective Work,
normally one year after the date of Final Completion or such longer period
of time as may be prescribed by Laws or Regulations or by the terms of
any applicable special guarantee or specific provision of the Contract
Documents.
18. Defective--An adjective which, when modifying the word Work, refers to
Work that is unsatisfactory, faulty,or deficient, in that it does not conform
to the Contract Documents, or does not meet the requirements of any
inspection, reference standard, test, or approval referred to in the Contract
Documents, or has been damaged prior to ENGINEER's recommendation
of final payment.
21. Effective Date of the Construction Agreement--The date indicated in the
Construction Agreement on which it becomes effective,but if no such date
is indicated, it means the date on which the Construction Agreement is
signed and delivered by the last of the two parties to sign and deliver.
24. Field Order--A written order issued by ENGINEER which directs minor
changes in the Work but which does not involve a change in the Contract
Price or the Contract Times.
25. Final Completion shall mean that all work has been completed, all final
punch list items have been inspected and satisfactorily completed, all
payments to subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents have been
executed and approved by the OWNER, and the Project has been finally
accepted by the OWNER.
26. General Conditions-That part of the Contract Documents which*sets forth
terms, conditions,and procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
33. Record Drawings--The Drawings as issued for construction on which the
ENGINEER, upon completion of the Work, has shown changes due to
Addenda or Change Orders and other information which ENGINEER
considers significant based on record documents furnished by Contractor
to ENGINEER and which were annotated by Contractor to show changes
made during construction.
35. Resident Project Representative--The authorized representative of
ENGINEER, if any, assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative will be
ENGINEER's agent or employee and under ENGINEER's supervision.
As used herein, the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by OWNER. The
duties and responsibilities of the Resident Project Representative are as set
forth in Exhibit D.
First Amendment,Page 4
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 ari 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:
A 1.015 Preliminary Engineering Phase H
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. Consult with OWNER to define and clarify OWNER'S additional
requirements for the Project and available data not identified within the
Preliminary Design Phase.
First Amendment,Page 5
2. Advise OWNER as to the necessity of the 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. Identify, consult with, and analyze requirements of governmental authorities
having jurisdiction to approve the portions of the Project designed or specified
by the ENGINEER.
4. Attend meetings with OWNER and OWNER'S consultants,designated boards,
commissions and/or city council to receive input into OWNER'S requirements
for the Project and evaluate potential solutions available to Owner.
5. Perform or provide the following additional Preliminary Engineering Phase
tasks or deliverables:
a. ENGINEER will drive the alignment of the selected force main identified
within the PER to identify known above- and under-ground conflicts.
request and review dry utility maps, review available City of Baytown
construction documents for existing public utilities, coordinate and add
information provided by the "one-call" systems, communicate with other
public agencies regarding planned infrastructure improvements that may
conflict with the location of the existing and proposed force main, and
determine if any sub-surface explorations are deemed necessary.
b. Contact utility and pipeline companies with facilities near the site to obtain
maps of existing facilities. If necessary, the Engineer will coordinate with
the pipeline/utility companies to have these facilities located in the field.
c. Provide a complete design survey for the Project including required
topography and site boundary information. The Survey shall provide
complete horizontal and vertical control as well as show ownership,
encumbrances, recorded easement information, existing infrastructure, and
topographic information for construction of the proposed lift station and
selected force main alignment. ENGINEER will assist in obtaining the
easements identified within the PER; however, if it becomes necessary for
the City to acquire additional easements or right-of-ways or if the selected
alignment must deviate significantly from the PER, the Engineer will
perform survey work and prepare a legal description for an additional fee.
d. Provide a geotechnical investigation (under a subconsultant agreement
with Aviles Engineering Corp.) for the proposed lift station improvements
and selected force main alignment. The purpose of the investigation will
be to evaluate the near surface geological conditions and to provide
geotechnical conclusions and design recommendations regarding the
proposed improvements. Investigation will address: general soil and
geologic conditions; recommendations for structures and force main
design; depth to groundwater or seepage; excavation considerations;
pavement design recommendations; recommendations for trenching and
shoring, foundation design,select fill requirements and bearing strength.
e. Provide an investigation to prepare a Phase I Environmental Site
Assessment, Wetland Delineation, Wetland Verification, Threatened and
First Amendment,Page 6
Endangered Species Assessment, Historical, Cultural and Archaeological
Assessment, and Vegetation Impacts Assessment (under a subconsultant
agreement with Berg Oliver Associates. Inc.) for the proposed lift station
improvements site and selected force main alignment to determine whether
any recognized environmental concerns exists and provide details on
potential regulatory impacts and risk. If additional work is required or
recommended based on the Phase I Environmental Site Assessment(Phase
I ESA) for determination of impact or compliance these can be completed
for an additional fee. Services not within the scope of a Phase I ESA
include but are not limited to: preparing, coordinating, and obtaining a
Clean Water Act Section 404 from the USACE or an Archeological
Pedestrian Survey.
6. Prepare a preliminary submittal of 50% drawings for the proposed lift station
improvements and force main (the "50% Submittal") which will, as
appropriate,contain schematic layouts illustrating the scale and relationship of
the improvements. sketches. approximately six (6) easement parcel documents
(number based on preliminary engineering report), schedule of events. and
conceptual design criteria with appropriate exhibits to indicate those solutions
identified in the PER and available to OWNER which ENGINEER
recommends.Preliminary selections of construction materials shall be noted on
the drawings or otherwise described in writing in the Submittal. The 50%
Submittal will be accompanied by ENGINEER's opinion of the Total Project
Costs for each solution which is so recommended for the Project with each
major component separately itemized, including the following, which will be
separately itemized: opinion of probable Construction Cost, allowances for
contingencies and for the estimated total costs of design, professional, and
related services provided by ENGINEER and, on the basis of information
furnished by OWNER,allowances for other items and services included within
the definition of Total Project Costs.
7. Furnish three (3) review copies of the 50% Submittal to OWNER within one-
hundred sixty (160) calendar days of authorization to being services and
review it with OWNER.
A 1.02 Final Design Phase.
A. After acceptance by OWNER of the Preliminary Design Phase II documents and
revised opinion of probable Construction Cost as determined in the Preliminary Design
Phase II, 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, including quality level for major
materials. 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.
First Amendment,Page 7
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 A 1.015.A.6.
4. Perform or provide the following additional final Design Phase tasks or
deliverables:
a. Acquire plan approvals from the City, Harris County,pipeline companies, all
utility companies and the Texas Commission on Environmental Quality.
b. Coordinate with the local service providers to confirm adequacy of electrical
service capacity.
5. Make appropriate recommendations to the OWNER to adjust the Project size,
quality or budget if at any time the ENGINEER's estimate of the probable
Construction Cost or Total Project Costs exceed the OWNER'S budget.
6. Prepare storm water pollution prevention plan and traffic control plan.
7. Provide six full size sets of 90% documents for the OWNER's review and
comment within 160 calendar days of authorization to begin final design services
and review it with the OWNER.
8. Revise the documents in response to OWNER's and other parties' comments, as
appropriate.
9. Provide three (3) full-size sets of 100% Bidding Documents for the OWNER's
review and comment within 45 calendar days after receiving OWNER'S
comments on the 90% documents.
10. Revise the documents in response to OWNER's and other parties' comments, as
appropriate and furnish 15 final copies of the revised 100% Bidding Documents
and a revised opinion of probable Construction Cost to the OWNER within ten
days after completion reviewing the 100%Bidding Documents with OWNER.
B. (Modified) ENGINEER's services under the Design Phase will be considered
complete on the date when the final copies of the revised 100% Bidding Documents
have been delivered to and accepted by OWNER.
A 1.02 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;
2. Provide information to and answer questions from potential bidders;
3. Issue Addenda as appropriate to clarify, correct, or change the Bidding
Documents;
First Amendment,Page 8
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, rebidding, or re-negotiating
contracts for construction,materials,equipment,or services. .
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon
commencement of the Construction Phase.
A 1.03 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,if any.
3. Pre-Construction Conference. Participate in a Pre-Construction
Conference prior to commencement of Work at the Site.
4. Baselines and Benchmarks. As appropriate, establish baselines and
benchmarks for locating the Work which in ENGINEER's judgment are
necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with
observations of Contractor's work while it is in progress:
a. (Modified) Make visits to the Site at least once a week and 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
First Amendment,Page 9
not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of
Contractor's work in progress beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the
Contract Documents, but rather are to be limited to spot checking,
selective sampling, and similar methods of general observation of
the Work based on ENGINEER's exercise of professional
judgment as assisted by the Resident Project Representative, if
any. Based on information obtained during such visits and such
observations, ENGINEER will determine if Contractor's work is
proceeding in accordance with the Contract Documents, and
ENGINEER shall keep OWNER informed of the progress of the
Work.
b. (Modified) The purpose of ENGINEER's visits to, and
representation by the Resident Project Representative, if any, at
the Site, will be to enable ENGINEER to better carry out the
duties and responsibilities assigned to and undertaken by
ENGINEER during the Construction Phase, and, in addition, by
the exercise of ENGINEER's efforts as an experienced and
qualified design professional, to provide for OWNER a greater
degree of confidence that the completed Work will substantially
conform to the Contract Documents and that the integrity of the
design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and
preserved by Contractor. ENGINEER shall not,during such visits
or as a result of such observations of Contractor's work in
progress, supervise, direct, or have control over Contractor's
work, nor shall ENGINEER have authority over or responsibility
for the means, methods, techniques, sequences, or 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.
First Amendment,Page 10
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
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 final inspection, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications
First Amendment,Page 11
stated in the recommendation), and the conditions precedent to
Contractor's being entitled to such payment appear to have been
fulfilled in so far as it is ENGINEER's responsibility to observe
Contractor's work. In the case of unit price work, ENGINEER's
recommendations of payment will include final determinations of
quantities and classifications of Contractor's work (subject to any
subsequent adjustments allowed by the Contract Documents). The
responsibilities of ENGINEER contained in paragraph
A 1.04.A.5.a are expressly subject to the limitations set forth in
paragraph A 1.04.A.5.b and other express or general limitations in
this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be
deemed to have represented that observations made by
ENGINEER to check the quality or quantity of Contractor's work
as it is performed and furnished have been exhaustive,extended to
every aspect of Contractor's work in progress,or involved detailed
inspections of the Work beyond the responsibilities specifically
assigned to ENGINEER in this Agreement and the Contract
Documents. Neither ENGINEER's review of Contractor's work
for the purposes of recommending payments nor 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 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
First Amendment,Page 12
ENGINEER's review will be limited as provided in paragraph
A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within
thirty(30)days of receipt of documents from Contractor.
d. (Added)Preparing and furnishing to OWNER Record Drawings
on Mylar showing appropriate record information based on
Project annotated record documents received from Contractor.
15. Final Inspection. 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 complete. If after considering any objections of OWNER, ENGINEER
considers the Work complete, ENGINEER shall deliver Notice of
Acceptability of Work to OWNER and Contractor.
16. Record Information. ENGINEER shall review the Operations and
Maintenance Manuals and the record drawings provided by the Contractor
for conformance with the Contract Documents and accurate representation
of the equipment supplied by the Contractor. ENGINEER shall provide
the approved Operations and Maintenance Manuals, the record drawings,
and other submittals to the OWNER as well as electronic as-built drawings
for the completed Project, in a format acceptable to the OWNER.
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.
A 1.04 Post-Construction Phase
A. Upon written authorization from OWNER, ENGINEER, during the Post-
Construction Phase,shall:
1. Together with OWNER, visit the Project to observe any apparent defects
in the Work, assist OWNER in consultations and discussions with
First Amendment,Page 13
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.
1. Section B2.01 of Exhibit "B" is hereby amended to add the following subsections, which
shall read as follows:
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be
provided by others for OWNER so that ENGINEER may make the necessary
calculations to develop and periodically adjust ENGINEER's opinion of Total
Project Costs.
L. (Modified)If OWNER designates a construction manager or an individual or entity
other than, or in addition to, ENGINEER to represent OWNER at the Site, define
and set forth the duties, responsibilities, and limitations of authority of such other
party and the relation thereof to the duties, responsibilities, and authority of
ENGINEER.
M. Attend the pre-bid conference, pre-construction conferences, construction progress
and other job related meetings,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 cost not to exceed amount of$604,600 based upon the rate
schedule,which is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes. This amount does not include those
Engineer's Consultant's charges as provided below in this Article 4,
Subparagraph C4.05. The Cost not to exceed will be distributed at the
completion of each of the phases in an amount not exceeding the
following for each phase:
a. Preliminary Design Phase.......................................$ 455100
b. Preliminary Design Phase II....................................$ 128,000
c. Final Design Phase..................................................$325,000
d. Bidding/Negotiation Phase......................................$ 155000
e. Construction Phase..................................................$ 905000
. Post-Construction Phase..........................................$ 19500
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:
First Amendment,Page 14
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
$1,000 for which the ENGINEER seeks reimbursement. Reimbursable
Expenses shall not exceed the following for each phase for the project,
whether incurred by the ENGINEER or ENGINEER's consultant(s):
a. Preliminary Design Phase.........................................$ 35900
b. Preliminary Design Phase II.......................................$ 9,000
c. Final Design Phase....................................................$ 125000
d. Bidding/Negotiation Phase..................................................0-
e. Construction Phase.................................................... 85000
f. Post-Construction Phase.............................................$ 200
o. Exhibit "C" "Payments to ENGINEER for Services and Reimbursable Expenses," Article 4
"Payments to the ENGINEER," shall be amended to add Section C4.05, which shall 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:
Geotechnical.....................................................................$50,000
Structural ..........................................................................$509000
Environmental...................................................................$205000
p. 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,
First Amendment,Page 15
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 b��yydeemed t e an origina, but all of which shall constitute but one and the same
amendment, this"V'day of , 2009, the date of execution by the City
Manager.
CITY OF AY
By:
GARRISON C. B BACK,City Manager
TEST:
O��p,YTOINN�
E CIA GAR A, Inte im Ci Clerk
i
$ e to
APPROVED AS TO FORM: ti r
L,509ACIO RAMIREZ, SR., City rney
JONES &CART C.
By:
(Signature)
4 /A s
(Printed Name)
C�a
(Title)
ATTEST:
ignature)
(Printed
Name)
V`r`
(Title)
First Amendment,Page 16
This is EXHIBIT E. consisting of 2 pages,
referred to in and part of the Agreement
between OWNER and ENGINEER for
Professional Services dated January 21.2007,
Initial:
OWNERJL
''�L
ENGINEER /.-50
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:
Page I of 2 Pages
(Exhibit E -Notice of Acceptability of Work)
e
0
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work("Notice")on the front side of this sheet is expressly made subject
to the following terms and conditions to which all persons who receive said Notice and rely thereon
agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession
practicing under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge,information, and belief as of the date
hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services
ENGINEER has been employed by OWNER to perform or furnish during construction of the Project
(including observation of the CONTRACTOR's work)under ENGINEER's Agreement with
OWNER and applies to facts that are within ENGINEER's knowledge or could or should have been
ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to
ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified)Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish
and perform the work 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)