Ordinance No. 11,284ORDINANCE NO. 11 -284
AN ORDINANCE OF "I -I -iE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS.
AUTI- ICURIZING AND DIRECTING THE CITY MANAGER TO EXECUTE: AND
-I -I IE CITY CLERK "1.0 ATTEST TO THE FIRS "I' AMENDMENT -1 -0 THE
PROFESSIONAI, SERVICES AGREEMENT WITH COS "I1 -1-1-0_ INC., 1=0R FINAL
DESIGN OF TI IE 2007 STREET BOND PROGRAM — PHASE I1: AU -1 1- IORIZING
PAYMENT BY THE CITY OF BAYTOXVN IN AN AMOUNT NOT TO EXCEED
TWO HUNDRED EIGHTY -FOUR THOUSAND NINE HUNDRED TIHR "I -Y -FIVE
AND NO /100 DOLLARS ($284,935.00); MAKING OTHER PROVISIONS RELATED
THERETO: AND PROVIDING FOR THE EFFECTIVE DATE TI IEREOF.
*** * * * * * * * ** * * * * * * *ww**- V*w*w *w*wW * ** s : : . rW*W* ** ** * * + * * * * *** * * * * ***** * * ** * **** * * **
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN. 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 Antendutent to the Professional Services
Agreement with Costello, Inc., for final design of the 2007 Street Bond Program — Phase 11. 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 Costello,
Inc., in an arttount not to exceed TWO HUNDRED EIGHTY -FOUR 7'IIOUSAND NINE IIUNDRED
THIRTY -FIVE AND NO /100 DOLLARS ($284,935.00) for engineering services in accordance with the
First Amendment authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby- granted general authority to approve a decrease
or an increase in costs by TWF_NTY -FIVE THOUSAND AND NO/ 100 DOLLARS ($25,000.00) or less_
provided that the antoUnt authorized in Section 2 hereof may not be increased by Inure than twenty-five
percent (259/o).
Section 4: This ordinance shall take effect immediately
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative
Baytown this the 14`h day of January, 2010- z
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APPROVED AS TO FORIM:
AC1O RAMIREZ, SIZ., City orney
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and alter its passage by the
of the City Council of the City of
CARLOS, M
FIRST ANIENDAIENT
TO THE
ENGINEERING SERVICES AGREENN'IENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS
COUNTY OF HARRIS
This First Amendment ("First Amendment ") to the Standard Form of Agreement between the
City of Baytown and Costello, Inc., dated June 15, 2009, is made by and between the same parties on the
date hereinafter last specified to authorize the services necessary to provide final design phase, bid phase,
and construction phase services for the 2007 Street Bond Program for the following streets:
(the '`Project ").
Street
Hackberry Ln,
Froin
Bumett
To
Meador
Offske Drainage
Yes
Bolster
Ba) less
Allman
Yes
S. Hemlock
Larch
Shirley
No
W. Humble Ave.
Whiting i
S. Ashbel
` No
Dale Ave.
Adana
Sheridan
No
S. Atlantic St.
Chesapeake '
Ontario
Yes
Larch St.
Larch Cir.
Hemlock
No
New Jersey St.
Missouri !
Kentucky
No
W ITNESSETH:
WHEREAS, the City of Baytown ( "OWNER ") and Costello, Inc., ( "ENGINEER ") did enter into
an Engineering Services Agreement. dated June 15. 2009, in an amount not to exceed TWO HUNDRED
SEVENTEEN THOUSAND FOUR HUNDRED NINETY AND NO /100 DOLLARS ($217,490.00)
( "Agreement "): and
WHEREAS, OWNER and ENGINEER desire to amend the Agreement for ENGINEER to
provide design, bidding, and construction phase engineering services for the Project: and
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this First Amendment shall have the same meanings as in the Agreement.
2. Amendments
a. The scope of the services to be performed by the ENGINEER is hereby amended to include
the design, bidding, and 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
First Amendment, Page 1
completion of the immediately preceding phase, or if OWNER delays
ENGINEER's services, ENGINEER may. after giving seven days' written
notice to OWNER, suspend services under this Agreement. If during such
seven -day period. OWNER gives written authorization to proceed or
ENGINEER'S services are no longer delayed by OWNER. ENGINEER
may not suspend services under this Agreement.
c. Article 5 is hereby amended to add Section 5.03 to read as follows:
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the accuracy of opinions of
Total Project Costs.
d. Section 6.01 is hereby amended to add subsection G, which shall read as follows:
G. Prior to the commencement of the Construction Phase. OWNER shall
notify ENGINEER of any variations from the language indicated in
Exhibit E. 'Notice of Acceptability of Work," or of any other notice or
certification that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and ENGINEER
shall reach agreement on the terms of any such requested notice or
certification, and OWNER shall authorize such Additional Services as are
necessary to enable ENGINEER to provide the notices or certifications
requested.
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.
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.
First Amendment, Page 2
Section 6.01 is hereby amended to add subsection L, which shall read as follows:
L. (Modified) The General Conditions for any construction contract
documents prepared hereunder are to be the Standard Form of Agreement
between Owner and Contractor and as approved by OWNER in writing.
i. Section 7.01.A is hereby amended to add the following definitions:
1. Addenda -- Written or graphic instruments issued prior to the opening of
Bids which clarify. correct. or change the Bidding Documents.
7. Bid - -The offer or proposal of the bidder submitted on the prescribed form
setting forth the prices for the Work to be performed.
8. Bidding Documents - -The advertisement or invitation to Bid, instructions
to bidders, the Bid form and attachments, the Bid bond, if any. the
proposed Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended by ENGINEER, which is
signed by Contractor and OWNER to authorize an addition, deletion or
revision in the Work. or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of the Construction
Agreement.
10. Construction Agreement - -The written instrument which is evidence of the
agreement, contained in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract- -The entire and integrated written agreement
between the OWNER and Contractor concerning the Work.
12. Construction Cost - -The cost to OWNER of those portions of the entire
Project designed or specified by ENGINEER. Construction Cost does not
include costs of services of ENGINEER or other design professionals and
consultants, cost of land, rights -of -way. or compensation for damages to
properties. or OWNER's costs for legal. accounting, insurance counseling
or auditing services, or interest and financing charges incurred in
connection with the Project. or the cost of other services to be provided by
others to OWNER pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. (Modified) Contract Documents -- Documents that establish the rights and
obligations of the parties engaged in construction and include the
Construction Agreement between OWNER and Contractor and all
documents referenced therein. Addenda (which pertain to the Contract
Documents), Contractor's Bid (including documentation accompanying
the Bid and any post -Bid documentation submitted prior to the notice of
award) when attached as an exhibit to the Construction Agreement, the
notice to proceed, the bonds, appropriate certifications, insurance
documents. the General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more specifically
identified in the Construction Agreement, together with all Written
Amendments, Change Orders. Work Change Directives. Field Orders, and
ENGINEER's written interpretations and clarifications issued on or after
First Amendment, Page 3
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.
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
First Amendment, Page 4
considers significant based on record documents furnished by Contractor
to ENGINEER and which were annotated by Contractor to show changes
made during construction.
35. Resident Project Representative - -The authorized representative of
ENGINEER, if any. assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative will be
ENGINEER's agent or employee and under ENGINEER's supervision.
As used herein, the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by OWNER. The
duties and responsibilities of the Resident Project Representative are as set
forth in Exhibit D.
37. Shop Drawings - -All drawings. diagrams, illustrations, schedules, and other
data or information which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGINEER to illustrate some
portion of the Work.
39. Specifications- -That part of the Contract Documents consisting of written
technical descriptions of materials, equipment, systems, standards, and
workmanship as applied to the Work and certain administrative details
applicable thereto.
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:
8.01 Exhibits Included
E. Exhibit E. "Notice of Acceptability of Work." consisting of two (2) pages.
First Amendment, Page 5
k. Article 1, Part I of Exhibit A is hereby amended to add the following:
A 1.02 Final Design Phase.
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised
opinion of probable Construction Cost as determined in the Preliminary Design Phase.
but subject to any OWNER - directed modifications or changes in the scope, extent,
character. or design requirements of or for the Project, and upon written authorization
from OWNER. ENGINEER shall:
(Modified) On the basis of the acceptance, direction. and authorization. prepare
final Drawings indicating the scope, extent, and character of the Work to be
performed and furnished by Contractor. including quality level for major
materials. Specifications will be prepared, where appropriate, in conformance
with the Harris County Specifications or other format agreed to in writing by
OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data for OWNER's
use in filing applications for permits from or approvals of governmental
authorities having jurisdiction to review or approve the final design of the Project
and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost
and any adjustments to Total Project Costs known to ENGINEER. itemized as
provided in paragraph A1.01.A.8.
4. Perform or provide the following additional final Design Phase tasks or
deliverables:
a. Meet with OWNER'S staff to discuss project goals, schedule, budget and
coordination.
b. Attend meeting with OWNER and OWNER'S staff and representatives to
receive input into and discuss the progress of the Project monthly and as
otherwise may be requested by the OWNER.
c. Prepare project manual, including bid form, scope of .work. technical
specifications and OWNER's standard front end documents.
d. Coordinate approvals with agencies of jurisdictions to obtain Project
approvals and permits.
5. Make appropriate recommendations to the OWNER to adjust the Project size,
quality or budget if at any time the ENGINEER's estimate of the probable
Construction Cost or Total Project Costs exceed the OWNER'S budget.
6. Prepare storm water pollution prevention plan and traffic control plan.
Provide six full size sets of 90% construction documents, including, but not
limited to. a cover sheet, index and notes sheet. survey control map, layout
sheets, plan and profile sheets of proposed paving, drainage and utility
improvements and appurtenances. sidewalk and ramp improvements. tree
protection plans, technical specifications. SW3P plans. traffic control plans and
all applicable details, for the OWNER's review and comment within 120
First Amendment, Pace 6
calendar days of authorization to begin final design services and review it with
the OWNER.
8. Revise the documents in response to OWNER's and other parties' comments, as
appropriate.
9. Provide three (3) full -size sets of 100% Bidding Documents and a revised
opinion of probable Construction Cost for the OWNER's review and comment
within 45 calendar days after receiving OWNER'S comments on the 90%
documents.
10. Revise the documents in response to OWNER's and other parties' comments, as
appropriate and furnish 20 sets of plans. 25 final copies of the revised 100%
Bidding Documents and a revised opinion of probable Construction Cost to the
OWNER within ten days after completion reviewing the 100% Bidding
Documents with OWNER.
B. (Modified) ENGINEER's services under the Design Phase will be considered
complete on the date when the final copies of the revised 100% Bidding Documents
have been delivered to and accepted by OWNER.
A 1.03 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 Phase, and
upon written authorization by OWNER to proceed, ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals
for the Work and. where applicable;
2. Provide information to and answer questions from potential bidders:
3. Issue Addenda as appropriate to clarify. correct, or change the Bidding
Documents;
4. Consult with OWNER as to the acceptability of subcontractors. suppliers, and
other individuals and entities proposed by Contractor for those portions of the
Work as to which such acceptability is required by the Bidding Documents;
5. (Modified) Attend Mandatory Pre -Bid Conferences. prepare Bid tabulation
sheets. assemble contract documents;
6. Assist OWNER in both evaluating Bids or proposals, including Contractor
qualifications, and written recommendation to award contracts for the Work;
and
7. (Added) Assist in connection with Bid protests. rebidding, or re- negotiating
contracts for construction, materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon
commencement of the Construction Phase.
First Amendment, Page 7
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon
written authorization from OWNER, ENGINEER shall:
General Administration of Cwrsn-uction Conrt•act. 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 and provide five
sets of construction plans and five project manuals for construction use.
Baselines cord Benchmarks. As appropriate, establish baselines and
benchmarks for locating the Work which in ENGINEER's judgment are
necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with
observations of Contractor's work while it is in progress:
a. (Modified) Make visits to the Site at least once a month plus once
prior to each monthly project meeting and at intervals appropriate
to the various stages of construction, appropriate to verify
Contractor's payment requests, and as ENGINEER and /or
OWNER deems necessary, in order to observe as an experienced
and qualified design professional the progress and quality of the
Work. Such visits and observations by ENGINEER, and the
Resident Project Representative. if any, are 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
First Amendment, Page 8
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) Defective Fork. 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.
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 iVork 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 Drmvings, Samples, and Subminals. Review and approve or take
other appropriate action in respect to Shop Drawings, Samples, Submittals
and other data which Contractor is required to submit, but only for
conformance with the infortnation 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.
First Amendment, Page 9
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.
II. Inspections and Tests. Require such special inspections or tests of
Contractors work as deemed reasonably necessary, and receive and
review all certificates of inspections. tests, and approvals required by Laws
and Regulations or the Contract Documents. ENGINEER's review of
such certificates will be for the purpose of determining that the results
certified indicate compliance with the Contract Documents and will not
constitute an independent evaluation that the content or procedures of such
inspections, tests. or approvals comply with the requirements of the
Contract Documents. ENGINEER shall be entitled to rely on the results of
such tests.
12. Decisions. (Modified) Disagreements between OWNER and Contractor.
Render formal written decisions on all claims of OWNER and Contractor
relating to the acceptability of Contractor's work or the interpretation of
the requirements of the Contract Documents pertaining to the execution
and progress of Contractor's work. In rendering such decisions.
ENGINEER shall be fair and not show partiality to OWNER or
Contractor.
13. Applications for Payment. Based on ENGMER's observations as an
experienced and qualified design professional and on review of
Applications for Payment and accompanying supporting documentation:
a. Determine the amounts that ENGINEER recommends Contractor
be paid. Such recommendations of payment will be in writing and
will constitute ENGINEER's representation to OWNER. based on
such observations and review, that, to the best of ENGINEER's
knowledge. information and belief, Contractor's work has
progressed to the point indicated, the quality of such work is
substantially in accordance with the Contract Documents (subject
to an evaluation of the Work as a functioning whole prior to or
upon final inspection, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications
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
First Amendment, Page 10
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
fumishing 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 detenmine that
title to any portion of the work in progress, materials, or
equipment has passed to OWNER free and clear of any liens,
claims, security interests, or encumbrances, or that there may not
be other matters at issue between OWNER and Contractor that
might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating
instructions. schedules, and guarantees as prepared by the
Contractor in accordance with the Contract Documents. Engineer
will compile this information as provided by Contractor, and
deliver three (3) copies of the same to OWNER.
b. (Modified) Receive bonds, certificates. or other evidence of
insurance not previously submitted and required by the Contract
Documents. certificates of inspection, tests and approvals, Shop
Drawings, Samples and other data approved as provided under
paragraph A 1.04.A.9, and the annotated record documents which
are to be assembled by Contractor in accordance with the
Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph
A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within
fourteen (14) days of receipt of documents from Contractor or
from the return of the documents to the Contractor for
correction.
d. (Added)Preparing and furnishing to OWNER Record Drawings
on Mylar showing appropriate record infor-mation based on
Project annotated record documents received from Contractor.
15. Final Inspection. Promptly after notice from Contractor that Contractor
considers the entire Work ready for its intended use, in company with
OWNER and Contractor. conduct an inspection to determine if the Work
is complete. If after considering any objections of OWNER, ENGINEER
First Amendment, Page 1 t
considers the Work complete. ENGINEER shall deliver Notice of
Acceptability of Work to OWNER and Contractor.
16. Record Information. ENGINEER shall review the Operations and
Maintenance Manuals and the record drawings provided by the Contractor
for conformance with the Contract Documents and accurate representation
of the equipment supplied by the Contractor. ENGINEER shall provide
the approved Operations and Maintenance Manuals, the record drawings,
and other submittals to the OWNER as well as electronic as-built drawings
for the completed Project, in a format acceptable to the OWNER.
17. (Modified) Final Notice of Acceptability of the ff'ork. Conduct a final
inspection to determine if the completed Work of Contractor is acceptable
so that ENGINEER may recommend, in writing, final payment to
Contractor. Accompanying the recommendation for final payment.
ENGINEER shall also provide a notice in the form attached hereto as
Exhibit E (the "Notice of Acceptability of Work') that to the best of
ENGINEER's knowledge, information and belief and upon the exercise of
ENGINEER'S due diligence, the Work is acceptable and is in compliance
with the Contract Documents.
B. Dio•ation of Construction Phase. The Construction Phase will commence with the
execution of the first Construction Agreement for the Project or any part thereof
and will terminate upon final payment to Contractor.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or
omissions of any Contractor, or of any of its subcontractors, suppliers. or of any
other individual or entity performing or furnishing any of the Work. ENGINEER
shall not be responsible for failure of any Contractor to perform or furnish the
Work in accordance with the Contract Documents.
I. Section B2.01 of Exhibit "B" is hereby amended to add the following subsections, which
shall read as follows:
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be
provided by others for OWNER so that ENGINEER may make the necessary
calculations to develop and periodically adjust ENGINEER's opinion of Total
Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity
other than. or in addition to, ENGINEER to represent OWNER at the Site. define
and set forth the duties. responsibilities. and limitations of authority of such other
party and the relation thereof to the duties, responsibilities, and authority of
ENGINEER.
M. Attend the pre -bid conference, pre-construction conferences, construction progress
and other job related meetings, and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on -site
representative. if any, to ENGINEER during construction phase,
First Amendment, Page 12
m. Section C4.01.A.1 of Article 4 of Exhibit "C" is hereby amended to read as follows:
C4.01 For Basic Services Having A Determined Scope —Cost not to Exceed Alethod
of Payment
1. (Modified) A cost not to exceed amount of $461.089 based upon the rate
schedule, which is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes. This amount does not include those
Engineer's Consultant's charges as provided below in this Article 4,
Subparagraph C4.05. The Cost not to exceed will be distributed at the
completion of each of the phases in an amount not exceeding the
following for each phase:
a. Preliminary Design Phase ...... ............................... $ 189.525
b. Final Design Phase ................. ............................... $ 201.433
c. Bidding/Negotiation Phase ..... ............................... $ 10.000
d. Construction Phase ................ ............................... $ 60,131
n. Exhibit "C" "Payments to ENGINEER for Services and Reimbursable Expenses." Article 4
"Payments to the ENGINEER." Section C4.04.A shall be amended to read as follows:
C4.04 For Reimbursable Expenses
A. (Modified) When not included in compensation for Basic Services under
paragraph C4.01. OWNER shall pay ENGINEER for Reimbursable
Expenses at the rate set forth in Appendix 2 of this Exhibit C. Before the
OWNER shall be liable for any reimbursable expenses, the ENGINEER must
obtain prior written approval of the OWNER of any expense that exceeds
$1.000 for which the ENGINEER seeks reimbursement. Reimbursable
Expenses shall not exceed $8.750. whether incurred by the ENGINEER or
ENGINEER's consultant(s).
o. Exhibit C" "Payments to ENGINEER for Services and Reimbursable Expenses," Article 4
"Payments to the ENGINEER." shall be amended to add Section C4.05, which shall read as
follows:
C4.05 For ENGINEER's Consultant's Charges
Whenever compensation to ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the amounts billed by
ENGINEER's Consultants to ENGINEER times a factor of 1.10. The
consultant charges shall not exceed the following amounts specified for each
of the following services. The charges include the factor. and are as follows:
Geotechnical ..................................... ............................... $ 17.015
Tree Protection ................................. ............................... $ 12.271
TDLR................................................ ............................... $ 3.300
p. Exhibit E, which is attached hereto, is hereby added to this agreement and incorporated
herein for all intents and purposes.
Entire Agreement. The provisions of this First Amendment and the Agreement should be read
together and construed as one agreement provided that, in the event of any conflict or
First Amendment, Page 13
inconsistency between the provisions of this First Amendment and the provisions of the
Agreement. the provisions of this Second Amendment shall control.
Interpretation. This First Amendment has been jointly negotiated by the parties hereunder and
shall not be construed against a parry hereunder because that party may have assumed primary
responsibility for the drafting of this Amendment
5. Captions. Captions contained in the Agreement. and First Amendment are for reference only and,
therefore, have no effect in construing the documents. The captions are not restrictive of the
subject matter of any section.
6. No Waiver. By this First Amendment, the Owner does not consent to litigation or suit, and the
Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of
this First Amendment, the Agreement or any other contract or agreement or addenda, any charter,
or applicable state law. Nothing contained in this First Amendment or in the Agreement shall be
construed in any way to limit or to waive the City's sovereign immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the same
amendment, this day of 2010, the date of execution by the City
Manager.
CITY OF BAYTOWN
By:
GARRISON C. BRUMBACK. City Manager
ATTEST:
LETICIA GARZA. City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ. SR.. City Attorney
COSTELLO, INC.
By:
(Signature)
(Printed Name)
(Title)
First Amendment. Pare 14
ATTEST:
(Signature)
(Printed Name)
(Title)
R: �KarenTiles \EngineeringTngineering Agreements\Costcllo12007 Street Bond Program - Year 2 StreetskFlrstAmendtnent.doc
First Amendment, Page 15
This is EXHIBIT E, consisting of 2 pages,
referred to in and part of the Agreement
behveen OWNER and ENGINEER for
Professional Services dated June 15. 2009.
Initial:
[40MI 191
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.
In
Title:
Dated:
Page I 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.
(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 thereunder 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)