Ordinance No. 11,271ORDINANCE NO. 1 1 .271
AN ORDINANCE OF "I_I [E CITY COUNCIL OF THE CITY O BAY "TOWN. TEXAS.
AUTHC)RiZING AND DIRECTING THE CITY MANAGER "I'O EXECUTE AND
TI -IE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO Tl iE
PROFESSIONAL SERVICES AGREEMEN -T WITH COBB. I:t- NDL.EY g
ASSOCIATES. INC.. FOR FINAL DESIGN OF "[ -I -IE PINEIIUIZS "[ SANITARY
SEWER AND DRAINAGE IMPROVEMENTS PROJECT: AUTIIORIZING
PAYMENT BY THE CITY OF BAYTOVVN IN AN AMOUNT NOT TO EXCEED
FIVE HUNDRED - 1-1IIRTY -SEVEN THOUSAND SIXTEEN AND NO/] 00 DOLLARS
($537,016.00)_ MAKING OTHER PROVISIONS RELATED TI- iE[ZE "I ^O: AND
PROVIDING FOR T[ -IE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAY-1—OWN—TEXAS:
Section 1: That the City COUnCil of the City of Baytown hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to the First Amendment to the Professional Services
Agreement with Cobb, Fendley &_ Associates, Inc., for final design of the Pinehurst Sanitary- Sewer and
Drainage Improvements Project. A copy of the agreement is attached hereto. marl=ed Exhibit "A," and
made a part hereof for all intents and purposes.
Section 2: "That the City Council of the City of Baytown authorizes payment to Cobb,
Fendley 8c Associates_ Inc__ in an amount not to exceed FIVE I- IUNDRED TIIIRTY -SEVEN
THOUSAND SIXTEEN AND NO /100 DOLLARS ($537.016.00) for engineering services in accordance
with the agreement authorized in Section I hereinabove.
Section 3: "That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY -FIVE THOUSAND AND NO/] 00 DOLLARS ($25.000.00) or less.
provided that the amount authorized in Section 2 hereof may not be increased by more than oventy -five
percent (25 1/6).
Section 4: This ordinance shall take effect immediately frorn and after its passage by the
City CO1111C11 of the City of Bavtovvn_
INTRODUCED. READ and PASSED by the affirmative vot `of the City Council of the City of
Baytown this the 1 Oth day of December. 2009.
ew4; �pAYTd1'{rN ST H—EN H. DONCARLOS. ayor
CrA. ARZrV'tit rk
APPROVED AS TO FORM:
G AC10 RAMIREZ_ SR._ Ci _ ttorney
R K.—AFJes Cny Conic�l \Ord m..... 2007v1 U_r 10 \CobbFenlcy Drainagebnpro�'etnents,doc
Exhibit "A"
FIRST AMENDMENT
TO THE
PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF BAYTOWN
AND
COBB, FENDLEY & ASSOCIATES, INC.
STATE OF TEXAS §
COUNTY OF HARRIS §
This First Amendment ( "Amendment ") to that certain "Professional Services Agreement"
between the City of Baytown and Cobb, Fendley & Associates, Inc., dated the 8th day of April, 2009, is
made by and between the same parties on the date hereinafter last specified.
WITNESSETH:
WHEREAS, the City of Baytown (the "OWNER ") and Cobb, Fendley & Associates, Inc.,
( "ENGINEER ") did enter into a Professional Services Agreement, dated the 21' day of January, 2009,
( "Agreement ") to perform professional services necessary for the Sanitary Sewer and Drainage
Improvements Project — Pinehurst Subdivision Project (the "Project "); and
WHEREAS, the OWNER now desires Professional to perform a survey, an expanded drainage
preliminary engineering report along with final design, bidding phase and construction phase services in
support of the Project; and
WHEREAS, the OWNER and ENGINEER agree to amend the Agreement for such services in
accordance with the terms and conditions contained herein;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this Amendment shall have the same meanings as in the Agreement.
2. Amendments. The amendments specified in this First Amendment pertain to the preliminary
design, design, bidding, and construction phase services for the Project and include the following:
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
First Amendment to the Agreement for Professional Services, Page 1
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.
Section 6.01 is hereby amended to add subsection G, which shall read as follows:
G. Prior to the commencement of the Construction Phase, OWNER shall
notify ENGINEER of any variations from the language indicated in
Exhibit E, "Notice of Acceptability of Work," or of any other notice or
certification that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and ENGINEER
shall reach agreement on the terms of any such requested notice or
certification, and OWNER shall authorize such Additional Services as are
necessary to enable ENGINEER to provide the notices or certifications
requested.
e. Section 6.01 is hereby amended to add subsection I, which shall read as follows:
I. During the Construction Phase, ENGINEER shall not supervise, direct, or
have control over Contractor's work, nor shall ENGINEER have authority
over or responsibility for the means, methods, techniques, sequences, or
procedures of construction selected by Contractor, for safety precautions
and programs incident to the Contractor's work in progress, nor for any
failure of Contractor to comply with Laws and Regulations applicable to
Contractor's furnishing and performing the Work.
f. Section 6.01 is hereby amended to add subsection J, which shall read as follows:
J. (Modified) ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to
furnish and perform the Work in accordance with the Contract Documents.
However, nothing contained in this paragraph shall be construed so as to
absolve ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the exercise of
ENGINEER's services under this Agreement.
g. Section 6.01 is hereby amended to add subsection K, which shall read as follows:
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:
First Amendment to the Agreement for Professional Services Page 2
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.
Section 7.01.A is hereby amended to add the following definitions:
1. Addenda - -Written or graphic instruments issued prior to the opening of
Bids which clarify, correct, or change the Bidding Documents.
7. Bid —The offer or proposal of the bidder submitted on the prescribed form
setting forth the prices for the Work to be performed.
8. Bidding Documents —The advertisement or invitation to Bid, instructions
to bidders, the Bid form and attachments, the Bid bond, if any, the
proposed Contract Documents, and all Addenda, if any.
9. Change Order --A document recommended by ENGINEER, which is
signed by Contractor and OWNER to authorize an addition, deletion or
revision in the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of the Construction
Agreement.
10. Construction Agreement - -The written instrument which is evidence of the
agreement, contained in the Contract Documents, between OWNER and
Contractor covering the Work.
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
First Amendment to the Agreement for Professional Services, Page 3
ENGINEER's written interpretations and clarifications issued on or after
the Effective Date of the Construction Agreement. Approved Shop
Drawings and the reports and drawings of subsurface and physical
conditions are not Contract Documents.
14. Contract Price- -The moneys payable by OWNER to Contractor for
completion of the Work in accordance with the Contract Documents and
as stated in the Construction Agreement.
15. Contract Times —The numbers of days or the dates stated in the
Construction Agreement to: (i) achieve Final Completion, and (ii)
complete the Work so that it is ready for final payment as evidenced by
ENGINEER's written recommendation of final payment.
16. Contractor - -An individual or entity with whom OWNER enters into a
Construction Agreement.
17. Correction Period —The time after Final Completion during which
Contractor must correct, at no cost to OWNER, any Defective 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.
First Amendment to the Aueement for Professional Services, Page 4
33. Record Drawings - -The Drawings as issued for construction on which the
ENGINEER, upon completion of the Work, has shown changes due to
Addenda or Change Orders and other information which ENGINEER
considers significant based on record documents furnished by Contractor
to ENGINEER and which were annotated by Contractor to show changes
made during construction.
35. Resident Project Representative - -The authorized representative of
ENGINEER, if any, assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative will be
ENGINEER's agent or employee and under ENGINEER's supervision.
As used herein, the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by OWNER. The
duties and responsibilities of the Resident Project Representative are as set
forth in Exhibit D.
37. Shop Drawings- -All drawings, diagrams, illustrations, schedules, and other
data or infonmation which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGINEER to illustrate some
portion of the Work.
39. Specifications —That part of the Contract Documents consisting of written
technical descriptions of materials, equipment, systems, standards, and
workmanship as applied to the Work and certain administrative details
applicable thereto.
41. Supplementary Conditions --That part of the Contract Documents which
amends or supplements the General Conditions.
42. (Modified) Total Project Costs —The sum of the Construction Cost,
allowances for contingencies, the total costs of services of ENGINEER or
other design professionals and consultants, cost of land, rights -of -way,
compensation for damages to properties, OWNER's costs for legal,
accounting, insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and the cost of
other services to be provided by others to OWNER pursuant to Exhibit B
of this Agreement.
44. Work Change Directive --A written directive to Contractor issued on or
after the Effective Date of the Construction Agreement and signed by
OWNER upon recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing or unforeseen
subsurface or physical conditions under which the Work is to be
performed or to emergencies. A Work Change Directive will not change
the Contract Price or the Contract Times but is evidence that the parties
expect that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if any, on the Contract
Price or Contract Times.
j. Section 8.01 is hereby supplemented to include the following:
First Amendment to the Agreement for Professional Services, Page 5
8.01 Exhibits Included
E. Exhibit E, "Notice of Acceptability of Work," consisting of two (2) pages.
k. Section A.1.02 "Design Phase" of Exhibit A of the Agreement is hereby amended to add
the following:
A1.02 Final Design Phase
A. 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, relationships, forms size and
appearance of the Project by means of plans, profiles, construction details and
specifications together with the extent and character of the Work to be performed
and furnished by Contractor, including the quality levels 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.
3. Perform or provide the following additional Final Design Phase tasks or
deliverables:
a. Expand the scope of the initial drainage study to identify preliminary pipe
and ditch sizes to adequately convey the 5 -year rainfall event on Bayou Vista
Drive and Maple Lane south of Pinehurst Drive, Forrest Hollow Drive and
Pinehurst Drive east of Pine Shadows Lane and west of Willow Oak Drive,
Bayou Woods Drive, Palmetto Lane, Cottonwood Drive, Dogwood Lane,
Hickory Lane, Ironwood Lane, Longleaf Lane, and Willow Oak Drive. A
summary report for the drainage analysis will be prepared and submitted to
the OWNER for approval with the 30% design submittal.
b. Perform a Category 6, Condition I topographical survey of the site,
consisting of the Forrest Hollow and Pinehurst rights of ways east of Pine
Shadows Lane, and the Bayou Woods, Palmetto, Cottonwood, Dogwood,
Hickory, Ironwood, Longleaf, Willow Oak, Lone Oak, Sweet Gum, Lost
Pine, and Maple rights of way, in accordance with the requirements of the
Texas Society of Professional Surveyors to locate existing utilities,
appurtenances and pavement and to determine the existing elevations of the
street and driveways, utility lines which are accessible by manholes, the
existing ground elevations within the right -of -way plus an additional 10 feet
beyond the right -of -way, finish floor elevations and adjacent natural ground
elevations of the residences, cross sections at 100' intervals with F contour
accuracy, and trees outside of right -of -way which pose possible conflict.
Additionally, sanitary cleanout locations, adjacent natural ground elevations,
First Amendment to the Agreement for Professional Services, Page 6
and cleanout flow lines will be surveyed where proposed sanitary sewer lines
will have less than four feet of cover.
c. Perform utility record research and SUE Level B designation of utilities.
Tone marks will be placed on the ground for surveyors to tie down to project
control. This may include a field meeting with utility representatives. CAD
personnel will then place utility lines into the background of the topographic
survey. Layer/Level structure will be coordinated with Survey. Any non -
tonable utilities will be placed in the drawing based on utility record
interpretation as SUE Levels C and D.
d. Provide a geotechnical investigation and analysis for the project to determine
trenching conditions for underground construction and the elevation of the
ground water table.
e. Prepare drawings for the project showing location of project elements and
locations where the sanitary sewer system will be abandoned and/or
backfilled with flowable fill; and prepare contract bidding and construction
documents consisting of technical specifications and contract documents
outlining the construction contract requirements.
f. Provide biweekly status updates.
g. Attend meetings with the OWNER at 30 %, 60% and 90% design stages and
provide updated detailed cost estimates at each phase.
h. Attend and provide exhibits for one public meeting at or around the 90%
design stage with the OWNER and residents.
i. Coordinate project plans with utility owners.
j. Develop a construction phase traffic control plan.
k. Include details for tree preservation measures.
4. Advise OWNER of any adjustments to the Project schedule and the opinion of
probable Construction Cost and any adjustments to Total Project Costs known to
ENGINEER, itemized as provided in A1.01.A.7.
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.
7. Provide two (2) full -size sets of 30% documents and updated drainage study for the
Owner's review and comment within 75 days of the notice to proceed.
8. Provide six (6) full -size sets of 90% documents for the OWNER's review and
comment within ninety (90) calendar days of receipt of OWNER'S review of the
30% documents and review it with OWNER.
First Amendment to the Agreement for Professional Services. Page 7
9. Revise the documents in response to OWNER's and other parties' comments, as
appropriate.
10. Provide three full -size sets of 100% Bidding Documents for the OWNER's review
and comment within thirty (30) calendar days of after receiving OWNER's
comments on the 90% documents.
11. Revise the documents in response to OWNER's and other parties' comments, as
appropriate, and furnish fourteen (14) final bound copies, one (1) set of mylar
reproducibles of plans, and one (1) unbound copy of the revised 100% Bidding
Documents and a revised opinion of probable Construction Cost to the OWNER
within ten (10) days after completion of reviewing 100% Bidding Documents with
OWNER.
B. (Modified) ENGINEER's services under the Design Development Phase will be
considered complete on the date when the final copies of the revised documents have
been delivered to and accepted by OWNER.
1. Section A.1.03 "Bidding or Negotiating Phase" of Exhibit A of the Agreement is hereby
amended to add the following:
A1.03 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 Development 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.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and
other individuals and entities proposed by Contractor for those portions of the
Work as to which such acceptability is required by the Bidding Documents.
4. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening,
prepare Bid tabulation sheets, assemble contract documents, assist OWNER in
both evaluating Bids or proposals and awarding contracts for the Work.
5. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating
contracts for construction, materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon
commencement of the Construction Phase.
M. Section A.1.04 "Construction Phase" of Exhibit A of the Agreement is hereby amended
to add the following:
A1.04 Construction Phase
First Amendment to the Agreement for Professional Services, Page 8
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written
authorization from OWNER, ENGINEER shall:
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.
Visits to Site and Observation of Construction. In connection with observations of
Contractor's work in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages
of construction, appropriate to verify Contractor's payment requests, and as
ENGINEER and/or OWNER deems necessary, in order to observe as an
experienced and qualified design professional the progress and quality of the
Work. Such visits and observations by ENGINEER, and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve detailed inspections of
Contractor's work in progress beyond the responsibilities specifically assigned
to ENGINEER in this Agreement and the Contract Documents, but rather are
to be limited to spot checking, selective sampling, and similar methods of
general observation of the Work based on ENGINEER's exercise of
professional judgment as assisted by the Resident Project Representative, if
any. Based on information obtained during such visits and such observations,
ENGINEER will determine if Contractor's work is proceeding in accordance
with the Contract Documents, and ENGINEER shall keep OWNER informed
of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the
Resident Project Representative, if any, at the Site, will be to enable
ENGINEER to better cant' 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
First Amendment to the Agreement for Professional Services, Page 9
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.
8. Change Orders and Work Change Directives. Recommend Change Orders and
Work Change Directives to OWNER, as appropriate, and prepare Change Orders
and Work Change Directives as required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action
in respect to Shop Drawings and Samples and other data which Contractor is
required to submit, but only for conformance with the information given in the
Contract Documents and compatibility with the design concept of the completed
Project as a functioning 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
First Amendment to the Agreement for Professional Services, Page 10
Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of
the Contract Documents. ENGINEER shall be entitled to rely on the results of
such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal
written decisions on all claims of OWNER and Contractor relating to the
acceptability of Contractor's work or the interpretation of the requirements of the
Contract Documents pertaining to the execution and progress of Contractor's work.
In rendering such decisions, ENGINEER shall be fair and not show partiality to
OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced
and qualified design professional and on review of Applications for Payment and
accompanying supporting documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid.
Such recommendations of payment will be in writing and will constitute
ENGINEER's representation to OWNER, based on such observations and
review, that, to the best of ENGINEER's knowledge, information and belief,
Contractor's work has progressed to the point indicated, the quality of such
work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial
Completion, to the results of any subsequent tests called for in the Contract
Documents and to any other qualifications stated in the recommendation), and
the conditions precedent to Contractor's being entitled to such payment appear
to have been fulfilled in so far as it is ENGINEER's responsibility to observe
Contractor's work. In the case of unit price work, ENGINEER's
recommendations of payment will include final determinations of quantities
and classifications of Contractor's work (subject to any subsequent
adjustments allowed by the Contract Documents). The responsibilities of
ENGINEER contained in paragraph A1.04.A.5.a are expressly subject to the
limitations set forth in paragraph A1.04.A.5.b and other express or general
limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to
have represented that observations made by ENGINEER to check the quality
or quantity of Contractor's work as it is performed and furnished have been
exhaustive, extended to every aspect of Contractor's work in progress, or
involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract
Documents. Neither ENGINEER's review of Contractor's work for the
purposes of recommending payments nor ENGINEER's recommendation of
any payment including final payment will impose on ENGINEER
responsibility to supervise, direct, or control Contractor's work in progress or
for the means, methods, techniques, sequences, or procedures of construction
or safety precautions or programs incident thereto, or Contractor's compliance
with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. It will also not impose responsibility on ENGINEER to
make any examination to ascertain how or for what purposes Contractor has
used the moneys paid on account of the Contract Price, or to determine that
First Amendment to the Agreement for Professional Services, Page I I
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. Other Services.
a. Provide survey control staking prior to the start of construction.
b. Coordinate sanitary sewer service changeovers with the contractor and
residents.
c. Maintain a noncompliance log throughout the course of the project. The log
shall include details of noncompliance, date activity occurred, and date
correction of item occurred.
d. Attend meetings with the OWNER during construction
15. Contractor's Completion Documents.
a. (Modified) Receive bonds, certificates, or other evidence of insurance not
previously submitted and required by the Contract Documents, certificates of
inspection, tests and approvals, Shop Drawings, Samples and other data
approved as provided under paragraph A1.04.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the
Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph A 1.04.A.9.
b. ENGINEER shall transmit these documents to OWNER within ten (10) days
of receipt of documents from Contractor.
C. (Added) Preparing and furnishing to OWNER Record Drawings
on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
16. 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 finally complete. ENGINEER
shall prepare a punch -lists as necessary for the Work to achieve final completion.
17. (Modified) Final Notice ojAcceptability 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.
First Amendment to the Aereement for Professional Services, Page 12
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 the 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.
n. Section C4.01.A.1 of Exhibit C of the Agreement is hereby amended to read as follows:
1. (Modified) A cost not to exceed amount of $644,726.00 based upon the
direct personnel expense, which is defined in and based upon the rate
schedule in the attached Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes. The cost not to exceed does not
include those Engineer's Consultant's charges as provided below in this
Article 4, Subparagraph C4.05. Additionally, the cost not to exceed will
be distributed at the completion of each phase in an amount not
exceeding the following for each task:
1. Initial Study Phase ........................ ............................... $100,000
2. Preliminary Drainage Design Phase
a. Drainage Topographic Survey ... ...............................
20,000
b. Drainage Study .. ............................... .........................21,500
3. Design Phase ................................................ ...............................
a. Sanitary Sewer ............. ...............................
$ 228,137.00
b. Storm Sewer ................. ...............................
$ 196,318.00
4. Bidding/Negotiating Phase
a. Sanitary Sewer ................. ...............................
$ 7,113.00
b. Storm Sewer ..................... ...............................
$ 7,113.00
5. Construction Phase
a. Sanitary Sewer ............... ...............................
$ 42,030.00
b. Storm Sewer ................... ............................... $ 22,515.00
Notwithstanding anything to the contrary herein, fees for storm sewer
and sanitary sewer must be billed independently.
o. Section C4.03 of Exhibit C of the Agreement is hereby amended to read as follows:
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for Additional Services as follows:
1. General. For services of ENGINEER's employees engaged directly on the
Project pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement,
except for services as a consultant or witness under paragraph A2.0l.A.13,
an amount equal to ENGINEER's direct personnel expense based upon the
rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes plus Reimbursable Expenses and
ENGINEER's Consultant's charges, if any. Additional Services shall not
exceed $0.00 without the prior written consent of the Owner.
First Amendment to the Agreement for Professional Services, Page 13
P. Section C4.04.A of Exhibit C of the Agreement is hereby amended to read as follows:
C4.04 For Reimbursable Expenses
A. (Modified) 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 $1000.00 for which the
ENGINEER seeks reimbursement. Reimbursable Expenses shall not exceed
$7,290.00. Notwithstanding anything to the contrary herein, reimbursable
expenses for storm sewer and sanitary sewer services must be billed
independently.
q. Section C404.E of Exhibit C of the Agreement is hereby amended to read as follows:
C4.04 For Reimbursable Expenses
E. (Added) The OWNER must approve all travel expenses before the same are
incurred. If such approval is not obtained, the OWNER shall not be liable for
such travel expenses.
T. Section C4.05.A of Exhibit C of the Agreement is hereby amended to read as follows:
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever compensation to ENGINEER herein is stated to include
charges of ENGINEER's Consultants, those charges shall be the amounts billed
by ENGINEER's Consultants to ENGINEER times a Factor of I.I. The
Consultants' charges shall not exceed the following amounts specified for each
of the following services, unless approved in writing by the OWNER. The
charges include the factor, and are as follows:
1. Geotechnical
a. Sanitary Sewer ..................................... ............................... $ 5,700.00
b. Storm Sewer ................... ............................... ...................... $4,300.00
2. Arborist
a. Sanitary Sewer .................................... ..............................$ 11,400.00
b. Storm Sewer ................... ............................... ......................$8,600.00
Notwithstanding anything to the contrary herein, consultants' charges for storm
sewer and sanitary sewer services must be billed independently.
S. Section C4.08 of Exhibit C of the Agreement is amended to read as follows:
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the amounts billed for ENGINEER's
services which are identified in paragraphs C4.01 and C4.03, will be based on the
Rate Schedule for the cumulative hours charged to the Project during the billing
First Amendment to the Az=ment for Professional Services, Page 14
period by all of ENGINEER'S employees, plus Reimbursable Expenses and
ENGINEIER's Consultant's charges, if any.
3. Interpretation. The provisions of this Amendment and the previsions of 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 Amendment and the provisions of the Agreement,
the provisions of this Amendment shall control. Nothing contained in this Amendment or in the
Agreement shall be construed in any way to limit or to waive the OWNER'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.
COBB, FF.NDLEY S ASSOCIATCS, INC.
C,2�1 �,
(Signature)
e,turl es M. Ea.sflaJ
(Printed Name) �/�
MuNtG,- l . Dept. /' ama -)-er-
( fttle)
CITY OF BAYTOWN
By:
GARRISON C. BIZUMBACK, City Manager
ATTEST:
LETICIA GARZA, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
First Amendment to the Agreement for Professional Services, Page 15
STATE OF TEXAS
COUNTY OF HARRIS § rr
Before me on this day personally appeared eAarle6 A.'!&'>< b , in his capacity
as /kya; t %106 1 je of Cobb, Fendley &Associates, Inc., on behalf of such corporation,
known to me;
proved to me on the oath of ; or
proved to me through his current
{description of identification card or other document issued by the federal government or
any state government that contains the photograph and signature of the acknowledging
person}
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed. I
SUBSCRIBED AND SWORN before me this � t2
day of ho ve. e-f 2009.
ALEX VAN DOZER blic in and for the State of Texas
NOTARY PUBLIC D'
�
STATE OF TEXAS
COMM. EXPIRES 08.01 -2012
R:\ Karen\Fila \Engincmng\Engincering AgrmnrnlslCobb Fcndky\Drainage Bond Project - Year I\First Amendment.doc
First Amendment to the Agmment for Professional Services, Page 16
APPENDIX 1 OF EXHIBIT C
RATESCHEDULE
Engineer shall be paid based upon direct personnel expense times a multiplier of 2.4. Direct personnel
expense means actual salaries and wages paid to ENGINEER's employees plus payroll related costs and
benefits such as payroll taxes, worker's compensation, health and retirement benefits, bonuses, sick leave,
vacation and holiday pay during the term of this Agreement. Direct personnel expenses times the
multiplier shall at no time exceed the maximum billing rate specified hereinbelow;
Employee Classification
Maximum Rilline Rate
Principal......................................................... ............................... .....................$231.00 /HR
ProjectManager ............................................. ............................... .....................$180.00 /HR
ProjectEngineer II1 ........................................ ............................... .....................$135.00 /HR
Project Engineer 11 ........................................................................ .....................$125.00/HR
ProjectEngineer I ............................................................... ..............................$ 105.001HR
SeniorEngineer .............................................. ............................... .....................$190.00 /HR
Senior Hydrol ogist ................................. ............................... ....$175.00/HR
.........................
Senior Technician ......................................................................... .....................$115.00/HR
TechnicianIII ........................................................................ ..............................$ 95.001HR
TechnicianII ......................................................................... ..............................$ 85.00/HR
TechnicianI ........................................................................ ............................... $ 75.00/HR
Licensed State Land Surveyor ...................................................... .....................$200.00/HR
Registered Professional Land Surveyor ......... ............................... .....................$112.00 /HR
4 -Man Survey Crew ....................................... ............................... .....................$148.00 /HR
3 -Man Survey Crew ....................................... ............................... .....................$132.00 /HR
2 -Man Survey Crew ....................................... ............................... .....................$115.00 /HR
Construction Manager .................................... ............................... .....................$120.00
/HR
FieldConstruction Observer ................................................. ..............................$
80.00 /HR
UtilitySpecialist ........................................... . ....................................................
$105.00/HR
Telecommunications Designer .............................................. ..............................$
78.00/HR
Telecommunications Fieldman ............................................. ..............................$
66.0011-IR
GISManager .................................................. ............................... .....................$125.00
/HR
GISAnalyst ........................................................................... ..............................$
90.00/HR
Post Processing GPS Data .................................................... ..............................$
92.00/HR
Right -of -Way Agent ..................................................................... .....................$100.00/HR
Clerical.................................................................................. ..............................$
54.00/HR
GPS...................................................................... ...............................
$32.00 /HR/Receiver
Page 1 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
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:
OWNER
ENGINEER
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
OWNER
And To:
CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the
completed Work furnished and performed by CONTRACTOR under the above Contract is acceptable,
expressly subject to the provisions of the related Contract Documents and the terms and conditions set
forth on the reverse side hereof.
By:
Title:
Dated:
Page 2 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
(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)