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Ordinance No. 11,286ORDINANCE NO. 11,2$6 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH STANLEY ENGINEERING. INC.. FOR FINAL DESIGN OF THE ART LEAGUE BUILDING PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED THIRTY -ONE THOUSAND THREE HUNDRED NINETY -FIVE AND NO /100 DOLLARS ($31.395.00): MAKING OTHER PROVISIONS RELATED THERETO: AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown 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 Stanley Engineering. Inc., for final design of the Art League Building Project. A copy of the agreement is attached hereto. marked Exhibit "A." and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Stanley Engineering. Inc.. in an amount not to exceed THIRTY -ONE THOUSAND THREE HUNDRED NINETY -FIVE AND NO /100 DOLLARS ($31.395.00) for engineering services in accordance with the First Amendment 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 /100 DOLLARS ($25.000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent (25 %). Section 4: This ordinance shall take effect immediately fr om nd after its passage by the City Council of the City of Baytown. INTRODUCED. READ and PASSED by the affirmative vote f the City Council of the City of Baytown this the 14th day of January. 2010. -. Af t L APPROVED AS TO FORM: J ACIO RAMIREZ. SR.. ty Attorney R- \Karen% Files \City Council \Ordinances1201 ` nuary 14 kSta nlcyflngineeiinEFirstAmendmcnt4AnLeugueDuilding .doc Exhibit "A" FIRST AINIENDINIENT TO THE ENGINEERING SERVICES AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES STATE OF TEXAS COUNTY OF HARRIS This First Amendment ("First Amendment'') to the Standard Form of Agreement between the City of Baytown and Stanley Engineering Co.. Inc., dated October 30, 2009, is made by and between the same parties on the date hereinafter last specified to authorize the services necessary to provide final design, bidding and construction services for the Art League Building Project (the "Project "). WITNESSETH: WHEREAS, the City of Baytown ( "OWNER ") and Stanley Engineering Co., Inc., ( "ENGINEER ") did enter into an Engineering Services Agreement. dated October 30, 2009, in an amount not to exceed THIRTY -FIVE THOUSAND TWO HUNDRED FIFTY AND NO /100 DOLLARS ($35,250.00) for preliminary design phase services associated with the Project ( "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 for a cost not to exceed THIRTY -ONE THOUSAND THREE HUNDRED NINETY -FIVE AND NO /100 DOLLARS ($31,395.00); and WHEREAS, the Project shall entail the structural repairs identified in ENGINEER'S reports dated June 10, 2009, and November 19, 2009, and accepted by the OWNER: 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. 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. Section 3.02 is hereby amended to add subsection A. which shall read as follows: A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase. or if OWNER delays ENGINEER's services. ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement. If during such seven -day period. OWNER gives written authorization to proceed or ENGINEER'S services are no longer delayed by OWNER, ENGINEER may not suspend services under this Agreement. First Amendment. Page I 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 terns 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: 1. 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. h. Section 6.01 is hereby amended to add subsection L. which shall read as follows: L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. i. Section 7.0 LA is hereby amended to add the following definitions: Addenda -- Written or graphic instruments issued prior to the opening of Bids which clarify. correct, or change the Bidding Documents. First Amendment, Page 2 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 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. First Arnendment, Page 3 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 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. First Amendment, Page 4 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. k. Article 1, Part 1 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: First Amendment. Page 5 I . (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor, including quality level for major materials. Specifications will be prepared, where appropriate, in conformance with the 16- division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 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 A 1.0I.A.7. 4. Perform or provide the following additional final Design Phase tasks or deliverables: Task 1 — Roofing Design. ENGINEER shall retain an architect approved by the OWNER, to provide the following services: ➢ Visit the Project with a roof consultant to review existing roof conditions: Meet with OWNER and the roof consultant to make a roofing system recommendation to replace the existing roofing system: and Prepare detailed plans and specifications that set forth in detail the requirements for the roof construction of the Project, including the quality levels of materials and systems required. Task 2 — Structural Design. ENGINEER shall prepare structural design and drawings for the structural repairs as noted in ENGINEER'S reports dated June 10, 2009, and November 19. 2009. which are incorporated herein by this reference for this sole purpose. and for waterproofing the back portion of the building that is below finished grade. 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. Provide six full size sets of 90% documents for the OWNER's review and comment within 30 calendar days after receiving a notice to proceed for the design phase services. 7. Revise the documents in response to OWNER's and other parties' comments. as appropriate. 8. Provide three (3) full -size sets of 100% Bidding Documents for the OWNER's review and comment within 15 calendar days after receiving OWNER'S comments on the 90% documents. First Amendment, Paee 6 9. Revise the documents in response to OWNER's and other parties' comments, as appropriate and furnish 15 final copies of the revised 100% Bidding Documents and a revised opinion of probable Construction Cost to the OWNER within ten days after completion of reviewing the 100% Bidding Documents with OWNER. B. (Modified) ENGINEER's services under the Design Phase will be considered complete on the date when the final copies of the revised 100% Bidding Documents have been delivered to and accepted by OWNER. A 1.02 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable: 2. Provide information to and answer questions from potential bidders; 3. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents: 4. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents; 5. (Modified) Attend Mandatory Pre -Bid conferences and prepare Bid tabulation sheets: 6. Assist OWNER in both evaluating Bids or proposals and written recommendation to award contracts for the Work; and 7. (Added) Assist in connection with Bid protests. rebidding, or re- negotiating contracts for construction, materials, equipment, or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A 1.03 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER. ENGINEER shall: Genera/ Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the Construction Standard Form of Agreement. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said Construction Standard Form of Agreement 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 First Amendment, Page 7 the extent provided in this Agreement and said Construction Standard Form of Agreement except as otherwise provided in writing. 2. (Modified) Selecting Independent Testing Laboratoiy. 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 together with Engineer's consultant and its roofing consultant in a Pre - Construction Conference prior to commencement of Work at the Site. 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 while it is in progress: a. (Modified) Make visits together with Engineer's consultant's roofing consultant to the Site at least once a week and at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER and its consultant and subconsultant are not intended to be exhaustive or to extend to every aspect of Contractor's wort: 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 and ENGINEER's consultant's and subconsultant's exercise of professional judgment. 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 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 First Amendment, Page 8 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 I3'64. 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 6hork Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate. and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings, Samples, and Submittals. Together with ENGINEER's consultant and subconsultant, review and approve or take other appropriate action in respect to Shop Drawings. Samples. Submittals and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. IL Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests. and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the First Amendment, Nee 9 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 fof• 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. infonnation 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, ENGfNEER'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 First Amendment, Page 10 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 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. c. ENGINEER shall transmit these documents to OWNER within thirty (30) days of receipt of documents from Contractor. d. (Added)Preparing and furnishing to OWNER Record Drawings on Mylar showing appropriate record information based on Project annotated record documents received from Contractor. 15. Final Inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is complete. If after considering any objections of OWNER. ENGINEER considers the Work complete, ENGINEER shall deliver Notice of Acceptability of Work to OWNER and Contractor. 16. Record Information. ENGINEER shall review the Operations and Maintenance Manuals and the record drawings provided by the Contractor for conformance with the Contract Documents and accurate representation of the equipment supplied by the Contractor. ENGINEER shall provide the approved Operations and Maintenance Manuals, the record drawings, and other submittals to the OWNER as well as electronic as -built drawings for the completed Project, in a format acceptable to the OWNER. 17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to First Amendment, Page I 1 Contractor. Accompanying the recommendation for final payment. ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of ENGINEER's knowledge. information and belief and upon the exercise of ENGINEER'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractor. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. 1. Section C4.0 1.A. I of Article 4 of Exhibit `'C is hereby amended to read as follows: C4.01 For Basic Services HavingA Determined Scope —Cost not to Exceed Afethod of Payment I. (Modified) A cost not to exceed amount of $52,930 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 ......... ............................... $ 35,000 b. Final Design Phase .................... ............................... $ 12,970 c. Bidding/Negotiation & Construction Phases ........... $ 4.960 m. 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 the following for each phase for the project, whether incurred by the ENGINEER or ENGINEER's consultant(s): a. Preliminary Design Phase ............. ............................... $ 250 b. Final Design. Bidding/Negotiation and Construction Phases ................... ............................... $ 1,500 First Amendment, Page 12 n. 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 Far ENGINEER s Consuhant'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 in this Agreement shall not exceed $11,965, which amount includes the factor. o. Exhibit E. which is attached hereto, is hereby added to this agreement and incorporated herein for all intents and purposes. 3. Entire Agreement. The provisions of this First Amendment and the Agreement should be read together and construed as one agreement provided that. in the event of any conflict or inconsistency between the provisions of this First Amendment and the provisions of the Agreement, the provisions of this First Amendment shall control. Interpretation. This First Amendment has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this First Amendment 5. Captions. Captions contained in the Agreement and the First Amendment are for reference only and, therefore. have no effect in construing the documents. The captions are not restrictive of the subject matter of any section. 6. No Waiver. By this First Amendment, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to Iitigation 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 First 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 BAYTO'%N'N By: GARRISON C. BRUMBACK. City Manager ATTEST: LETICIA GARZA, City Clerk First Amendment, Page 13 APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STANLEY ENGINEERING CO., INC. By: (S natur LP (Printed Name) (Title) ATTEST: (Si ature) (Printed Name U( i -'ot- %))1)1'11 � r k_" (Title) R:IKaren\FileMngineering \Engineering Agreemenu\Stariley EngineeringlArt League SaucturahFirstAmendmentdoe First Amendment, Page 14 This is EXHIBIT E. consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated October 30, 2009. 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. M. 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: I . Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. Said Notice reflects and is an expression of the professional judgment of ENGINEER. 3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof. (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 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) IP FIRST AMENDMENT TO THE ENGINEERING SERVICES AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES STATE OF TEXAS COUNTY OF HARRIS This First Amendment ("First Amendment") to the Standard Form of Agreement between the City of Baytown and Stanley Engineering Co., Inc., dated October 30, 2009, is made by and between the same parties on the date hereinafter last specified to authorize the services necessary to provide final design,bidding and construction services for the Art League Building Project(the"Project"). WITNESSETH: WHEREAS, the City of Baytown ("OWNER") and Stanley Engineering Co., Inc., ENGINEER") did enter into an Engineering Services Agreement, dated October 30, 2009, in an amount not to exceed THIRTY-FIVE THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS 35,250.00)for preliminary design phase services associated with the Project("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 for a cost not to exceed THIRTY-ONE THOUSAND THREE HUNDRED NINETY-FIVE AND NO/100 DOLLARS 31,395.00);and WHEREAS, the Project shall entail the structural repairs identified in ENGINEER'S reports dated June 10, 2009, and November 19, 2009, and accepted by the OWNER; NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained,the parties hereto do hereby mutually agree as follows: 1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as used in this First Amendment shall have the same meanings as in the Agreement. 2. Amendments a. The scope of the services to be performed by the ENGINEER is hereby amended to include the design,bidding,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 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. First Amendment,Page 1 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. e. Section 6.01 is hereby amended to add subsection I,which shall read as follows: I.During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. f. Section 6.01 is hereby amended to add subsection J,which shall read as follows: J.Modified) ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve ENGINEER from liability for any such failure about which ENGINEER knew or should have known existed in the exercise of ENGINEER's services under this Agreement. g. Section 6.01 is hereby amended to add subsection K,which shall read as follows: K. (Modified) ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except ENGINEER's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. h. Section 6.01 is hereby amended to add subsection L,which shall read as follows: L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. i. Section 7.01.A is hereby amended to add the following definitions: 1. Addenda--Written or graphic instruments issued prior to the opening of Bids which clarify,correct,or change the Bidding Documents. First Amendment,Page 2 III 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 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. First Amendment,Page 3 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 fmally accepted by the OWNER. 26. General Conditions-That part of the Contract Documents which sets forth terms,conditions,and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 33. Record Drawings--The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 35. Resident Project Representative--The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. First Amendment,Page 4 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. k. Article 1,Part 1 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: First Amendment,Page 5 1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor, including quality level for major materials. Specifications will be prepared, where appropriate, in conformance with the 16-division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 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.7. 4. Perform or provide the following additional final Design Phase tasks or deliverables: Task 1 —Roofing Design. ENGINEER shall retain an architect approved by the OWNER,to provide the following services: Visit the Project with a roof consultant to review existing roof conditions; Meet with OWNER and the roof consultant to make a roofing system recommendation to replace the existing roofing system;and Prepare detailed plans and specifications that set forth in detail the requirements for the roof construction of the Project, including the quality levels of materials and systems required. Task 2—Structural Design. ENGINEER shall prepare structural design and drawings for the structural repairs as noted in ENGINEER'S reports dated June 10, 2009, and November 19, 2009, which are incorporated herein bythis referencerP for this sole purpose, and for waterproofing the back portion of the building that is below finished grade. 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. Provide six full size sets of 90% documents for the OWNER's review and comment within 30 calendar days after receiving a notice to proceed for the design phase services. 7. Revise the documents in response to OWNER's and other parties' comments, as appropriate. 8. Provide three (3) full-size sets of 100% Bidding Documents for the OWNER's review and comment within 15 calendar days after receiving OWNER'S comments on the 90%documents. First Amendment,Page 6 9. Revise the documents in response to OWNER's and other parties' comments, as appropriate and furnish 15 final copies of the revised 100% Bidding Documents and a revised opinion of probable Construction Cost to the OWNER within ten days after completion of reviewing the 100%Bidding Documents with OWNER. B. (Modified) ENGINEER's services under the Design Phase will be considered complete on the date when the final copies of the revised 100% Bidding Documents have been delivered to and accepted by OWNER. A 1.02 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Design Phase, and upon written authorization by OWNER to proceed,ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and,where applicable; 2. Provide information to and answer questions from potential bidders; 3. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents; 4. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents; 5. (Modified)Attend Mandatory Pre-Bid conferences and prepare Bid tabulation sheets; 6. Assist OWNER in both evaluating Bids or proposals and written recommendation to award contracts for the Work;and 7. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating contracts for construction,materials,equipment,or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A 1.03 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER,ENGINEER shall: 1.General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the Construction Standard Form of Agreement. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said Construction Standard Form of Agreement 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 First Amendment,Page 7 the extent provided in this Agreement and said Construction Standard Form of Agreement 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 together with Engineer's consultant and its roofing consultant in a Pre-Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5.Visits to Site and Observation of Construction. In connection with observations of Contractor's work while it is in progress: a.Modified) Make visits together with Engineer's consultant's roofing consultant to the Site at least once a week and at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER and its consultant and subconsultant 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 and ENGINEER's consultant's and subconsultant's exercise of professional judgment. 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 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 First Amendment,Page 8 for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations,ENGINEER believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings, Samples, and Submittals. Together with ENGINEER's consultant and subconsultant,review and approve or take other appropriate action in respect to Shop Drawings, Samples, Submittals and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or-equal."" Evaluate and determine the acceptability of substitute or "or-equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections,tests,and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the First Amendment,Page 9 Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 12. Decisions. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a.Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER,based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon final inspection, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include final determinations of quantities and classifications of Contractor's work(subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph A 1.04.A.5.a are expressly subject to the limitations set forth in paragraph 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 First Amendment,Page 10 responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price,or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 14. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this information as provided by Contractor, and deliver three(3)copies of the same to OWNER. b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph A 1.04.A.9,and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of such ENGINEER's review will be limited as provided in paragraph A 1.04.A.9. c. ENGINEER shall transmit these documents to OWNER within thirty(30)days of receipt of documents from Contractor. d. (Added)Preparing and furnishing to OWNER Record Drawings on Mylar showing appropriate record information based on Project annotated record documents received from Contractor. 15. Final Inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is complete. If after considering any objections of OWNER, ENGINEER considers the Work complete, ENGINEER shall deliver Notice of Acceptability of Work to OWNER and Contractor. 16. Record Information. ENGINEER shall review the Operations and Maintenance Manuals and the record drawings provided by the Contractor for conformance with the Contract Documents and accurate representation of the equipment supplied by the Contractor. ENGINEER shall provide the approved Operations and Maintenance Manuals, the record drawings, and other submittals to the OWNER as well as electronic as-built drawings for the completed Project,in a format acceptable to the OWNER. 17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to First Amendment,Page 11 S Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractor. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. 1. Section C4.01.A.1 of Article 4 of Exhibit"C"is hereby amended to read as follows: C4.01 For Basic Services Having A Determined Scope—Cost not to Exceed Method of Payment 1. (Modified) A cost not to exceed amount of$52,930 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 35,000 b. Final Design Phase 12,970 c. Bidding/Negotiation&Construction Phases 4,960 m. 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 the following for each phase for the project, whether incurred by the ENGINEER or ENGINEER's consultant(s): a. Preliminary Design Phase 250 b. Final Design,Bidding/Negotiation and Construction Phases 1,500 First Amendment,Page 12 n. 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 in this Agreement shall not exceed $11,965, which amount includes the factor. o. Exhibit E, which is attached hereto, is hereby added to this agreement and incorporated herein for all intents and purposes. 3. Entire Agreement. The provisions of this First Amendment and the Agreement should be read together and construed as one agreement provided that, in the event of any conflict or inconsistency between the provisions of this First Amendment and the provisions of the Agreement,the provisions of this First Amendment shall control. 4. Interpretation. This First Amendment has been jointly negotiated by the parties hereunder and shall not be construed against a party hereunder because that party may have assumed primary responsibility for the drafting of this First Amendment 5. Captions. Captions contained in the Agreement and the First Amendment are for reference only and,therefore, have no effect in construing the documents. The captions are not restrictive of the subject matter of any section. 6. No Waiver. By this First Amendment, the Owner does not consent to litigation or suit, and the Owner hereby expressly revokes any consent to litigation that it may have granted by the terms of this First Amendment,the Agreement or any other contract or agreement or addenda, any charter, or applicable state law. Nothing contained in this First Amendment or in the Agreement shall be construed in any way to limit or to waive the City's sovereign immunity. IN WITNESS WHEREOF, the arties hereto have executed this First Amendment in multiple copies, each of which shall deemed on i al, but all of which shall constitute but one and the same amendment, this day of 2011 e date of execution by the City Manager. CITY ► BA ' W I By: GARRISON C.BR • CK,City Manager ATT ;T. pf r 14;),, LT. - • •,. .„.5 • tip First Amendment,Page 13 APPROVED AS TO FORM: ACID RAMIREZ, SR., City A r y STANLEY ENGINEERING CO.,INC. By: Si ature L45 JAlk -P-idi N4 Printed Name) R..4 a?At Title) ATTEST: 44LC/( S nature) f.Doe4)1 aR-14 Printed Name) 24.1/44:&ka.,_ fi...ke" rtl R:\Karen\Files\Engineering\Engineering Agreements\Stanley Engineering\Art League Structural\FirstAmendment.doe First Amendment,Page 14 This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated October 30,2009. Initial: OWNE 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 1 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)