Ordinance No. 11,214O� �p
C-2
ORDINANCE NO. 11,214
AN ORDINANCE OF THE CI'I'Y COUNCIL OF THE CiTY OF BAYTOVIrN_ TEXAS.
AUTHORIZING - I-I -EE THIRD AMENDMENT -1-0 TI -IE STANDARD FOR,1%1I OF
AGREEMENT WITH KIMLEY -HORN AND ASSOCIATES. INC., DATED
JANUARY 26. 2007_ AND AMENDED ON OCTOBER 23, 2007. AND JANUARY 1 O.
2008- TO PREPARE COMPLETION CONSTRUC -I'lON DOCUMENTS_ TO
ADVERTISE FOR BID AND TO PROVIDE SERVICE=S RELATED TO THE
CONSTRUCTION OF - l -1 -1F: NEW AQUATIC FACILI -I,Y AT N.C. FOOTE PARK-
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN OF AN AMOUNT NOT
TO EXCEED THREE HUNDRED SIXTY -NINE THOUSAND EIGHT HUNDRED
SEVEN -1 -Y -FIVE AND NO /100 DOLLARS ($369.875.00): AND PROVIDING FOR
'FILE EFFECTIVE DATE THEREOF_
BE IT ORDAINED BY THE CITY COUNCIL OF TI-YE CITY OF BAYTOWN_ TEXAS:
Section 1: That the City Council of the City of Baytown. 71 exas. hereby authorizes the City
Manager to execute and the Interim City Clerk to attest to the -1 -hind Amendment to the Standard Form of
Agreement with Kiniley -Horn and Associates, Inc., dated January 26, 2007_ and arrrended on October 23.
2007, and January 10, 2008. to prepare completion construction documents, to advertise for bid and to
provide services related to the construction of the ne%v aquatic facility at the N.C. Foote Park. A copy of
the Third Amendment is attached hereto as Exhibit - -A" and incorporated Herein for all intents and
Purposes.
Section 2: That the City Council of the Cit}• of Baytown authorizes payrnent to Kirnley-
Horn and Associates- Inc.- of the sum of "I'HRLL HUNDRED SIXTY -NINE THOUSAND EIGHT
I IUNDRED SEVENTY -FIVE AND NO /100 DOLLARS ($369,875.00). pursuant to the Amendment_
Section 3: That the City Mana-er is hereby granted general authority to approve ally change
order involving _ a decrease or an increase in costs of T%k�'ENTV -FIVE THOUSAND AND NO/100
DOLLARS ($25- 000.00) or less_ however. the ori`inal contract price may not be increased by more than
twenty -rive percent (25 %) or decreased by more than twenty -five percent (25 °fo) without the consent of
the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from
City Council of the City of Baytown.
IN`- FRODUCED. PLEAD and PASSED by the affirmative vote
phis the 8`i' day of October. 2009. r
tar`
GA A_ In
City Clerk
APPROVED AS TO FORM:
CIO RAIMIREZ, SR., City A rr %'
S
R :',K:.tren \I=ilec \City Council \Ordinartecs \2009\October 8\ Kimley- Hor- n3RD,,Xmendn-ient_dc5c
after its passage by the
City Council of the Cite of
ARLOS, NI
Exhibit "A"
THIRD AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS
COUNTY OF HARRIS
This Third Amendment ( "Third Amendment ") to the Standard Form of Agreement between the
City of Baytown and Kimlcv -Hom and Associates, inc., dated January 26, 2007. and amended on
October 23, 2007, and January 18, 2008, is made by and between the same parties on the date hereinafter
last specified to authorize the services necessary to prepare completion construction documents, to
advertise for bids and to provide services related to the construction of one new aquatic facility at the
N.C. Foote Park.
W ITN ES SET II:
WHEREAS, the City of Baytown ( "OWNER ") and Kimley -Morn and Associates, Inc.,
("ENGINEER") did enter into an Engineering Services Agreement. dated January 26, 2007
("Agreement")-, and
WHEREAS, OW'NER'S City Council approved and adopted the Aquatic Facilities Master Plan
on .July 26, 2007. as prepared by the ENGINEER; and
WHEREAS, OWNER and ENGINEER entered into the First Amendment to the Agreement on
October 23, 2007, for preliminary design services and programming for two outdoor aquatic facilities at
the Wayne Gray Sports Complex and N.C. Foote Park and one water spray ground at McElroy Park in
accordance with the approved City of Baytown Aquatic Facilities Master Plan (the "First Amendment "):
and
WI IEREAS. OWN*FR and ENGINEER entered into the Second Amendment to the Agreement on
January 18, 2008,
1. to Finalize the conceptual master plans, programming for two outdoor aquatic facilities at
Wayn: Gray Sports Complex and N.C. Foote Park and one water spray ground at
McElroy Park in accordance with the approved City of Baytown Aquatic Facilities
Master Plan; and
to prepare completion construction documents, to advertise for bid and to provide
services related to the construction of one new aquatic facility at Wayne Gray Sports
Complex (the "Second Amendment "); and
WHEREAS, OWNER now wishes to amend the Agreement again to authorize the ENGINEER to
prepare completion construction documents, to advertise for bid and to provide services related to the
construction of one new aquatic facility at the N.C. Foote Park per the concept plan: and
WHEREAS, ENGINEER desires to perform Such services on behalf of OWNER;
Third Amendment to the Standard Form
ofAtreement between Owner and En ip�necr, Page I
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this Addendum shall have the same meanings as in the Agreement and the First and
Second Amendments.
?. Amendments. The amendments specified in this Third Amendment shall be particular to the
outdoor aquatic facility at N.C. Foote Park and are meant to supplement the Agreement, the First
Amendment and the Second Amendment.
a. Article 8 "Exhibits and Special Provisions," Section 8.01 "Exhibits Included" of the
Agreement is hereby amended to read as follows:
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS
8.01 E.rhihits /nciuded
A. Exhibit A. "ENGINEER's Services
B. Exhibit A -I : "ENGINEER'S Services — N.C. Foote Park"
C. Exhibit B, `'OWNER's Responsibilities,"
D. Exhibit B- I, "ONVNER's Responsibilities — N.C. Foote Park,"
E. Exhibit C, '-Payments to Engineer for Services and Reimbursable
Expenses."
F. Exhibit C -1, "Payments to Engineer for Services and Reimbursable
Expenses -- N.C. Foote Park,"
G. Exhibit D. "Duties, Responsibilities and Limitations of Authority of
Resident Project Representative, " is not used.
IL Exhibit E, "Notice of Acceptability of Work," is not used.
1. Exhibit F, "Construction Cost Limit." is not used.
J. Exhibit G, "Insurance," consisting of two (2) pages.
K. Exhibit 11, '`Dispute Resolution" is not used.
L. Exhibit I. "Allocation of Risks." is not used.
M. Exhibit J, "Special Provisions" is not used.
N. (Added) Exhibit K, "indemnification" consisting of two (2) pages.
b. The Agreement is herebv amended to add Exhibit A -1 "Engineer's Services — N.C. Foote
Park." which exhibit shall read as follows:
Exhibit A -1
ENGINEER'S Services — N.C. Foote Park
Article I of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the aquatics facility at N.C. Foote Park. ENGINEER
shall provide Basic and Additional Services as set forth below.
PART i -- BASK SERVICES (Modified)
A.I.016 Coordination and Design Management (Added)
Third Amendment to the Standard Form
of Agreement between Owner and Engineer, Page 2
A. ENGINEER shall:
I. Consult with OWNER to define and clarify OWNER's requirements for the
Project and available data.
2. Advise OWNER as to the necessity of OWNER providing data or services of
the types described in Exhibit B -1. which are not part of ENGiNFFR's Basic
Services. and assist OWNER in obtaining such data and services.
3. Identifv, consult with, and analyze requirements of governmental authorities
having jurisdiction to approve the portions of the Project designed or
specified by ENGINEER, including, but not limited to, mitigating measures
identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER: and, after
consultations with OWNER, recommend to OWNER those solutions which
in ENGiNEER's judgment meet OWNER's requirements for the Project.
5. Attend meetings with OWNER and OW'NER'S designated boards,
commissions and/or governing body to receive input into OWNER'S
requirements for the Project and evaluate potential solutions available to
OWNER.
b. Perform or provide the following additional tasks or deliverables:
Task 1,• Coordination and Design Management
ENGINEER will serve as the lead design consultant and project design
team manager. Items of work included in this task are:
a. Reviewing the survey and geo-tcchnical work;
b. Assigning design team responsibilities;
c. Performing initial due diligence to determine utility services and
OWNER requirements;
d. Managing the project and directing the consulting team during the
design phases;
c. Communicating regularly with OWNER as needed; and
f. Attending design review meetings during the following phases of the
Project:
I Schematic Design;
2. Design Development;
3. Construction Documents;
4. Bidding; and
5. Construction.
B. ENGINEER's Coordination and Design Management services will be considered
complete on the date when the construction services are accepted by OWNER.
'third Amendment to the Standard Form
of Agreement between Owner and Eneineer. Page 3
A.I.017 (Added) Schematic Design Phase.
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the
Project and available data.
2. Advise OWNER as to the necessity of OWNER providing data or services of
the types described in Exhibit B -1 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 ENGINEER. including, but not limited to, mitigating measures
identilied in the environmental assessment (ifany).
4. Identify and evaluate potential solutions available to OWNER: and, after
consultations with OWNER, recommend to OWNER those solutions which
in ENGINEER's judgment meet OWNER's requirements for the Project.
5. Attend meetings with OWNER and OWNER'S designated boards,
commissions and/or governing body to receive input into OWNER'S
requirements for the Project and evaluate potential solutions available to
OWNER.
6. Perform or provide the following additional Schematic Design tasks or
deliverables:
Task III: Schematic Design (30 days)
ENGINEER shall perform the following services for the schematic
design for the outdoor aquatic facility at N.C. Foote Park:
I. Prepare schematic plans, sections, and preliminary specifications for
the pools, buildings and site development showing dimensions and
features;
2. Provide an opinion of probable cost for the pools, buildings and site
development and answer questions regarding estimated cost data;
3. Provide information on finishes, equipment. lighting, outlets, pool
water supply and waste, structural design and site utilities:
4. Present the schematic designs to the OWNER and /or its
representatives;
5. Review design comments with the OWNER and/or its
representatives: and
6. Finalize the schematic design package to reflect the OWNER's
changes and comments.
7. (Modified) Prepare a schematic design report (the "Report") which will, as
appropriate, contain the information specified in A1.017.A.6 as well as
schematic layouts, sketches, schedule of events, and design criteria with
appropriate exhibits to indicate the agreed -to requirements, considerations
'1'hird Amendment to the Standard Form
of Aarycment bm%-ccn Owner and Engineer, Page 4
involved, and those alternate solutions available to OWNER which
ENGINEER recommends. This Report will be accompanied by
ENGINEER's opinion of 'total Project Costs for each solution which is
recommended for the Project with each 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. "the Report shall summarize the findings of this phase
of work. The Report shall contain professionally written text and graphic
exhibits documenting methodology, meeting notes, program elements, and
preliminary designs for the proposed location.
8. Furnish five (5) review copies of the Report to OWNER within thirty, (30)
calendar days of authorization to begin services and attend meetings as
necessary to review it with OWNER.
9. Revise the Report in response to OWNER's and other parties' comments, as
appropriate, and furnish five (5) final copies of the revised Report to
OWNER within live (5) calendar days after completion of reviewing it with
OWNER.
10. Attend meeting(s) of the City Council to present the Report, answer any
questions and obtain the City Council's acceptance of the Report.
ENGINEER's services under the Schematic Design Phase will be considered
complete on the date when the final copies of the revised Report have been delivered
to and accepted by OWNER.
A.1.021 Design Drrelopmend Construction Document Fluke
A. After acceptance by OWNER of the Schematic Design Phase documents and
revised opinions of probable Construction Cost as determined in Schematic Design
Phase contained in Section A.1.017, but subject to any OWNER- directed
modifications or changes in the scope, extent, character, or design requirements of
or for the Projea and upon written authorization from OWNER, ENGINEER shall
perform the following Design Development Phase tasks and/or deliverables:
I. (Modified) On the basis of the above acceptance, direction, and authorization,
prepare final Drawings indicating the scope, extent, and character of the Work
to be performed and furnished by Contractor. Specifications will be prepared,
where appropriate, in conformance with the lb- division format of the
Construction Specifications Institute or other format agreed to in writing by
OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data as needed for
the OWNER to file applications for permits from or to obtain approvals of
governmental authorities having jurisdiction to review or approve the final
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of Agreement bet% een Owner and Engineer, Page 5
design of the Project and assist OWNER in consultations, if any, with
appropriate authorities.
3. Advise OWNER of any adjustments to the opinions of probable Construction
Cost and any adjustments to Total Project Costs known to ENGINF.FR,
itemized as provided in paragraph A 1.017.A.7.
4. Perform or provide the following additional Final Design Phase tasks and/or
deliverables:
Task IV: Design Development (60 days)
The Design Development Phase for the aquatic facility at N.C. Foote
Park will consist of the following tasks:
I. Preparation of design development plans and specifications (50%
Construction Document) for the pools, buildings, and site
development;
2. Provide an opinion of probable cost for the pools, buildings, and
site development and answer questions concerning estimated cost
data;
3. Provide information on finishes, equipment. lighting, outlets, pool
water supply and waste, structural design and site utilities:
4. Present the design development plans to the OWNER and %or its
representatives:
>. Review design comments with the OWNER and/or its
representatives; and
6. Finalize the design development package to reflect the OWNER's
changes.
Task V: Construction Documents (60 Days)
The Construction Document Phase for the aquatic facility at N.C.
Foote Park will consist of the following ;asks:
I. Prepare final construction plans and specifications (100%
Construction Documents) for the pools, buildings, and site
development:
2. Provide an opinion of probable cost for the pools, buildings, and
site development and answer questions concerning estimated cost
data;
Provide information on finishes, equipment, lighting, outlets, pool
water supply and waste, stntctural design and site utilities;
4. Present the construction documents to the OWNER and/or its
representatives, which documents shall at a minimum include the
following:
a. Engineering Site Plans;
b. Site development plans (layout. grading, storm sewer and
drainage areas, +eater and sanitary, sewer. lighting, power
distribution, erosion control, planting and irrigation, and
details;
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of Agreement between Owner and Engineer, Page 6
c. Building plans (floor plans, elevations, section, details,
IIVAC, plumbing, electrical. utilities for OWNER - provided
food service equipment, finishes, and structural); and
d. Pool layout, piping, and filtration plans (sections, details,
equipment, pumps. filters and chemical feed equipment):
5. Review design comments; and
6. Finalize the construction documents to reflect the OWNER'S
changes and comments.
5. Prepare and furnish Bidding Documents for review and approval by OWNER,
its legal counsel, and other advisors, as appropriate, and assist. OWNER in the
preparation of other related documents,
6. Submit eight (8) final copies of the Bidding Documents and a revised opinion
of probable Construction Cost to OWNER within 120 days after authorization
to proceed with this phase.
7. (Added) Prepare additional line items in the Bid Tabulations, assuming the
project documentation, including plans and specifications, were originally
prepared to reflect these items, as reasonably requested by OWNER, so long as
this /these request(s) is made prior to the preparation of the Final bid documents.
B. Tice number of prime contracts for Work designed or specified by ENGINEER
upon which the ENGINEER's compensation has been established under this
Agreement is one (1).
C. (Modified) ENGiNEER's services under the Final Design Phase will be considered
complete on the date when the submittals required by paragraph A 1,03.A.6 have
been delivered to and accepted by OWNER.
A 1.031 Bidding Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent
opinions of probable Construction Cost as determined in the Design
Development/Construction Document Phase, and upon written authorization by
OWNER to proceed, ENGINEER shall for each phase of the Project:
I. Assist O`N`F,R in advertising for and obtaining bids or negotiating proposals
for the Work and, where applicable, provide 25 sets of plans and
specifications.
2. Issue Addenda as appropriate to clarify, cor rect, or change the Bidding
Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers. and
other individuals and entities proposed by Contractor for those portions of the
Work as to which such acceptability is required by the Bidding Documents.
d. (Modified) Attend the Mandatory Pre -Bid Conferences. prepare Bid tabulation
sheets, coordinate the assembly of the contract documents, assist OWNER in
both evaluating Bids or proposals and awarding contracts for the Work.
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of Agreement between Owner and En inecr, Page 7
5. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating
contracts for construction, materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase for each phase of the Project will be
considered complete upon commencement of the Construction Phase.
A 1.041 Construction Phase
A. Upon successful completion of the Bidding Phase, and upon written authorization
from OWNER, ENGINEER shall for each phase of the Project:
Generol 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 82.01.0, if any.
3. Pre - Construction Conference. Participate in a Pre- Construction Conference
prior to commencement of Work at the Site.
4. Baselines and Benchmarks. As appropriate, indicate on the plans any baselines
and benchmarks for locating the Work which in ENGINIiER's judgment are
necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Constructiom in connection with
observations of Contractor's work in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various
stages of construction, appropriate to verify Contractor's payment
requests, and as ENGINEER and/or OWNF,R deems necessary, in order to
observe as an experienced and qualified design, professional the progress
and quality of the Work. Such visits and observations by ENGINEER,
and the Resident Project Representative, if any, are not intended to be
exhaustive or to extend to every aspect of Contractor's work in progress or
to involve detailed inspections of Contractor's work in progress beyond
the responsibilities specifically assigned to ENGINEER in this Agreement
and the Contract Documents, but rather are to be limited to spot checking,
selective sampling, and similar methods of general observation of the
Work based on I NGINFER's exercise of protbssional 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
Third Amendment to the Standard form
ofAgreement between Owner and Engineer. Page 8
accordance with the Contract Documents. and ENGINE FR 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.
(Modified) Dejecrivt 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 Contractors work. Such clarifications and interpretations will
be consistent Nvith the intent of and reasonably inferable from tale Contract
Documents. ENGINEER may issue Field Orders authorizing minor variations
front the requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and
Work Change Directives to OWNER, as appropriate, and prepare Change
Orders and Work Change Directive as required.
9. Shop Drawings and Samples. Review and approve or take other appropriate
action in respect to Shop Drawings and Samples and other data which
Contractor is required to submit, but only for conformance with the
information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in
the Contract Documents. Such reviews and approvals or other action will not
extend to means, methods, techniques, sequences or procedures of construction
or to safety precautions and programs incident thereto. ENGINEER has an
Third Amendment to the Standard Form
of Agreement between Owncr and Engineer, Page 9
obligation to meet any Contractor's submittal schedule that has earlier been
acceptable to ENGINEER.
10. Substitutes and "or- equal." Evaluate and determine the acceptability of
substitute or "or- equal" materials and equipment proposed by Contractor, but
subject to the provisions of paragraph A2.01 of this Exhibit A-1.
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. (Modified) Disagreements between ONVNE•R and Contractor. Render formal
written decisions on all claims of OWNER and Contractor relating to the
acceptability of Contractor's work or the interpretation ofthe 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:
Determine the amounts that ENGINEER recommends Contractor be paid.
Such recommendations of payment will be in writing and will constitute
ENGINEER's representation to OWNER, based on such observations and
review, that, to the best of ENGINEER's knowledge, information and
belief, Contractor's work has progressed to the point indicated, the quality
of such work is substantially in accordance with the Contract Documents
(subject to an evaluation of the Work as a functioning whole prior to or
upon Substantial Completion, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications stated in the
recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is
ENGINEER's responsibility to observe Contractor's work. In the case of
unit price work. ENGINEER's recommendations of payment will include
final determinations of quantities and classifications of Contractor's work
(subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph
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
Third Amendment to the Standard Form
of Agreement between Owner and Engineer, Page 10
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 F.NGINEER'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
asccrain 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 Tree
and clear of anv 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. (Iviodifned) Receive bonds, certificates, or other evidence of insurance not
previously submitted and required by the Contract Documents, certificates
of inspection, tests and approvals, Shop Drawings. Samples and other data
approved as provided under paragraph A 1.04.A.9, and the annotated
record documents which are to be assembled by Contractor in accordance
with the Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days
of receipt of documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings showing
appropriate record information based on Project annotated record
documents received from Contractor.
(Added) Assist Owner in coordinating the final ADA inspection and
provide assistance to the OWNER as necessary for project compliance.
15. (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.
Third Amendment to the Standard Form
of Agreement between Owner and E tlgineer, Page 1 I
information and belief and upon the exercise of ENGINEER'S due diligence,
the Work is acceptable and is in compliance with the Contact Documents.
16. Attend meetings with OWNER, its representatives and/or contractor as
necessary to ensure the Project is progressing in accordance with the Contract
Documents.
17. Maintain communication (phone, fax, e -mail) for the discussion of questions
and issues as they arise throughout the Project.
18. Document meetings and response to requests for information.
19. Provide OWNER with a set of as -built documents from the Contractor.
B. Duration of Construction Phase. The Construction Phase will commence with the
execution of the first Construction Agreement for the Project or any pan thereof
and will terminate upon final payment to Contractors. if the Project involves more
than one prime contract as indicated in paragraph A1.02.C, Construction Phase
services may be rendered at different times in respect to the separate contracts.
C. [,imitation of Responsibilities. ENGINEER shall not be responsible 1'or the acts or
omissions of any Contractor, or of any o1' 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.
C. The Agreement is hereby amended to add Exhibit B -1 "OWNER's Responsibilities — N.C.
Foote Park," which exhibit shall read as follows:
Exhibit B-1
OWNER's Responsibilities — N.C. Foote Park
Article 2 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the aquatic facility at N.C. Foote Park,
132.01 In addition to other responsibilities of OWNER as set forth in this Agreement.
0' 'VNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's
requirements for the Project, including design objectives and constraints, space, capacity
and performance requirements. flexibility. and expandability, and any budgetary
limitations; and furnish copies of all design and construction standards which OWNER will
require to be included in the Drawings and Specifications; and furnish copies of OWNER's
standard forms, conditions, and related documents for ENGINEER to include in the
Bidding Documents. when applicable.
B. Fumish to ENGINEER any other available information pertinent to the
Project including reports and data relative to previous designs, or investigation at or
adjacent to the Site.
Third Amendment to the Standard Form
of Agreement between Owner and Fngincer. Page 12
C. (Modified) Following ENGINEER's assessment of initially - available
Project information and data and upon ENGINF.ER's written request, furnish or otherwise
make available such additional available Project related information and data as is
reasonably required to enable ENGINEER to complete its Basic and Additional Services, if
any, which shall include the following;
I . Any existing final plats of the park site;
2, A topographic/boundary survey and geotechnical investieation for the
N.C. Foot Park pool site:
3. A copy ofthe current parks master plan:
4. A copy of the current park master plan for the proposed aquatic facility
site;
d. Any OWNER design standards applicable to the Project: and
6. Any plans of existing or proposed utilities, parking and streets within or
adjacent to the aquatic facility at N.C. Foote Park.
E. (Modified) Authorize ENGINEER to provide Additional Services as set
forth in Part 2 of Exhibit A -1 of the Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions far ENGINEER
to enter upon public and private property as required for ENGINEER to perform services
under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings.
Specifications, proposals, and other documents presented by ENGINEER (including
obtaining advice of an attorney, insurance counselor, and other advisors or consultants as
OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Deleted).
(Deleted).
J. Advise ENGINEER of the identity and scope of services of any
independent consultants employed by OWNER to perforrn or furnish services in regard to
the Project, including, but not limited to, cost estimating;, project peer review, value
engineering, and constructability review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
d. The Agreement is hereby amended to add C -I, "Payments to Engineer for Services and
Reimbursable Expenses — N.C. Foote Park," which exhibit shall read as follows:
Third Amendment to the Standard Form
of Agreement between Owner and Engineer, Pale 13
Exhibit C -1
Payments to Engineer for Services and Reimbursable Expenses — N.C. Foote Park
Article 4 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the aquatic facility at N.C. Foote Park:
ARTICLE. 4 -- PAYMENTS TO THE ENGINEER
C4,01 For Basic Services lluvingA Derermined Scope — Cost not to Exceed Method of
Payment
A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A-
1 as follows:
(Modified) A cost not to exceed amount of 5196,900, based upon the rate
schedule, which is attached to the Agreement as Appendix I of Exhibit C -I
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 task, which amounts include the multiplier:
a. Coordination and Design Management S 25,675
b. Schematic Design $ 27,675
C. Design Development/Construction Documents S 88,750
d. Bidding S 14,850
e. Construction Services S 39,950
2. (Modified) ENGINEER may with the consent of OWNER alter the
distribution of compensation between individual tasks noted herein to be
consistent with services actually rendered, but shall not exceed the total cost
not to exceed amount unless approved in writing by the OWNER.
3. The cost not to exceed includes compensation for ENGINEER's services.
Appropriate amounts have been incorporated in the cost not to exceed to
account for labor. overhead, and profit.
4. Deleted.
5. The portion of the amount billed for ENGINEER`s services will be based
upon total services actually completed during the billing period.
C4.02 For Basic Services HavingAn Undetermined Scope -- Direct Lahur Costs Times u
Factor Alethod of Payment
A. (Deleted).
04.03 For.4dclitional Services
A. OWNER shall pay ENGINEER for Additional Services as lbllows:
Third Amendment to the Standard Form
of Aw- cement between Owner and Engineer, Page 14
I. General. For services of ENGINEER's employees engaged directly on the
Project pursuant to paragraph A2.01 or A2.02 of Exhibit A -1 of the
Agreement, except for services as a consultant or witness under paragraph
A2.01.A.13, an amount based upon the actual hours worked and the rate
schedule, which is attached as Appendix 1 of Exhibit C -1 and incorporated
herein for all intents and purposes, plus Reimbursable Expenses and
ENGINEER's Consultant's charges, if any. No Additional Services shall be
performed without the prior written consent of the Owner.
2. (Deleted).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in compensation for Basic Services under
paragraph 04.01 of this Exhibit, OWNER shall pay ENGINEER for Reimbursable
Expenses as the rate set forth in Appendix 2 of Exhibit C of the Agreement. Before the
OWNER shall be liable for any reimbursable expenses, the ENGfNEE-R 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 the Project pertaining to the aquatic facility at N.C. Foote Park, whether
incurred by the ENGINEER or ENGINEER's consultant(s):
a. Travel Expenses $ 17.325
b. Reproduction of review plans and plan distribution S 4.950
C. ADA Review and Inspection Fees S 2,200
d. Miscellaneous Expenses (Express Delivery, etc.) $ 2200
e. Reproduction ol'Bid Sets Allowance $ 3,300
B. (Modified) Reimbursable Expenses include the following categories:
mileage. parking, tolls, long distance, reproduction of Drawings. Specifications, Bidding
Documents, and similar Project- related items in addition to those required under Exhibit
A -1, and, if authorized in advance by OWNER.
C. The amounts payable to ENGINEER for Reimbursable Expenses will be
the Project - related internal expenses actually incurred or allocated by ENGINEER based
upon the rate schedule for reimbursable expenses, plus all invoiced external
Reimbursable Expenses allocable to the Project. the latter multiplied by a Factor of 1.1.
D. (Deleted).
E. (Deleted)
C4.05 For E.i'GLN'EF_R's C'onsultant's Charges
A. Whenever compensation to ENGINEER herein is stated to
include charges of 1~TGINEER'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:
Third Amendment to the Standard Form
of Agerment between Owner and Enkineer, Page 15
CounsiIman- Hunsaker ....................... ............................... $66.000
Davis& Davis .................................... ............................... S46,200
TheCore Group ................................. ............................... $13.200
Engineering Associates ...................... ............................... $17.600
C4.06 Direct Labor Cosis
A. (Deleted).
B. (Deleted).
4.07 Factors
A. (Deleted).
B. (Deleted).
C4.08 Other Provisions Concerning Pavntent
A. Progress Payments. The portion of the amounts billed for services which
are identified in paragraphs C4.01. C4.03, and C4.05 will be based on the rate schedule
for the cumulative hours charged to the Project during the billing period by all of
ENGINEFR's employees and consultant(s), plus Reimbursable Expenses.
Fritire Agreement. The provisions of this Third Amendment, the Second Amendment, the First
Amendment and the Agreement should be read together and construed as one agreement provided
that, in the event of any conflict or inconsistency between the provisions of this Third
Amendment and the provisions of the Agreement and/or the Second Amendment and/or the First
Amendment, the provisions of this 'Third Amendment shall control. Nothing contained in this
Third Amendment, the Second Amendment. the First Amendment, or in the Agreement shall be
construed in any way to limit or to waive the City's soNereign 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 BAYTOWN
By:
GARRISON C. BRUMBACK. City Manager
ATTEST:
E TICIA GARZA, Interim City Clerk
Third Amendment to the Standard Form
of Agreement between Owner and Engineer, Page 16
APPROVED AS TO FORM:
IGNACIO RAMIREZ. SR., City Attorney
KJMLEY- HOR,N.AND ASSOCIATES, INC.
B
y. G.
(Signature)
(Printed Name)
(Title)
A'l -11ST:
.�
(Signature)
(Printed Name)
_Vice
(Mille}
R Agreements, Kimley- liomL.. gaaticfacitities.�l asterPlanConv_ ctVl "hird-kmendmentClr:mRevised.dth
Third Atnendnicnt to tha Standard Form
of Azrecmcnt bM%,ccn Owner and F..ngineer. Page 17
Appendix I to
Exhibit C -1
Rate Schedule
Senior Project Manager / Professional .................................................................. ............................... $1 85.00
Engineer /Professional/Senior Admin Professional ............................................. ............................... S 1 55.00
Designer.............................................................................................................. ............................... $135.00
Ad ministration! Clerical .............................................................. ............................... ......................... $ 85.00