Loading...
Ordinance No. 11,299 ORDINANCE NO. 11,299 AN ORDINANCE OF TI-IE 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 MALCOLM PIRNIE, INC., FOR FINAL DESIGN OF THE CENTRAL DISTRICT WASTEWATER TREATMENT PLANT PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED SIX HUNDRED THIRTY THOUSAND ONE HUNDRED FIFTY-ONE AND NO/100 DOLLARS ($630,151.00): 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 Malcolm Pirnie. Inc.. for final design of the Central District Wastewater Treatment Plant Project. A copy of the amendment 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 Malcolm Pirnie, Inc.. in an amount not to exceed SIX HUNDRED THIRTY THOUSAND ONE HUNDRED FIFTY-ONE AND NO/100 DOLLARS ($630.151.00) 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 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 from and after its passage by the City Council of the City of Baytown. INTRODUCED. READ and PASSED by the affirmative vot: of the City Council of the City of Baytown this the 28th day of January. 2010. AR A. STE: si•NCARLOS, Mayor 43' lid a J. 0 7. ., , AGARZA, ' ityC - APPROVED AS TO FORM: ACIO RAMIREZ. SR., C. ttorney cobsrI legal'.KaremFdesCity CounciPOrdt si010 January 28\MalcolmPirni:FirstAmcndmcm4CentralDisuclLsfiStauon.doe Exhibit "A" 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 Malcolm Pimie, Inc., dated February 11, 2009, is made by and between the same parties on the date hereinafter last specified to authorize the services necessary to provide final design services for the Central District Wastewater Treatment Plant Project (the "Project "). WITNESSETH: WHEREAS, the City of Baytown ( "OWNER ") and Malcolm Pimie, Inc., ( "ENGINEER ") did enter into an Engineering Services Agreement, dated February 11, 2009, in an amount not to exceed ONE HUNDRED THIRTY -EIGHT THOUSAND THREE HUNDRED SEVENTEEN AND NO /100 DOLLARS (S138,317.00) 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, construction, and post - construction phase engineering services for the Project for a cost not to exceed SIX HUNDRED THIRTY THOUSAND ONE HUNDRED FIFTY -ONE AND NO/ 100 DOLLARS (5630,151.00); and WHEREAS, the Project shall entail engineering services necessary for the construction of a 40- mgd influent lift station, including, but not limited to, the following: Influent Lift Station ('ILS ") a. Emergency generator and electrical building, b. Site paving and grading, c. Yard piping, d. Perimeter fence, gates and lighting, e. ILS structural, electrical and instrumentation, and f. ILS pump system and discharge piping; and 2. Yard Piping a. Force main from ILS to the WWTP influent, includes W. Main Street crossing; and b. Reroute existing sewers and force main under W. Main Street from existing discharge to revised location; 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. First Amendment, Page I Amendments a. The scope of the services to be performed by the ENGINEER is hereby amended to include the design, bidding, construction, and post - construction phase engineering services for the Project. 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. 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 1, which shall read as follows: 1. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractors 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 First Amendment, Page 2 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. It. 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 Fonn of Agreement between Owner and Contractor and as approved by OWNER in writing. L 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. 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 First Amendment, Page 3 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. Is. 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 tits 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. First Amendment, Page 4 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 daring 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. First Amendment, Page 5 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: (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 subparagraph 3.6.4 of paragraph A 1.01.A.6. 4. Perform or provide the following additional final Design Phase tasks or deliverables: Task 1 Project Meetings 1.1 Kickoff Meeting ENGINEER shall within ten (10) calendar days of authorization to begin services under this Final Design Phase: a. coordinate a kickoff meeting with OWNER to establish the goals. objectives, and expectations for the project. The meeting will be held at OWNER's facilities. b. Provide the following deliverables: Meeting agenda: and > Meeting minutes to document key decisions and agreed action items 1.2 Design Submittal Workshops ENGINEER shall within 10 days after 50% and 90% submittals are revised with OWNER's comments: a. coordinate and conduct two workshops (after the 50% and 90% submittals) with OWNER to review the milestone design submittals. The purpose of the workshop will be to clarify design First Amendment, Page 6 issues and to capture City comments to the design. The meetings will be held at City facilities. b. Provide the following deliverables: Workshop agendas: and Workshop comments recorded to document key decisions and agreed action items. Task 2 - Detailed Design ENGINEER shall: a. provide detailed design, including but not limited to, detailed design drawings, bid documents, technical specifications, and cost estimates. The detailed design shall include. but not be limited to, a survey control drawing, a traffic control plan, demolition drawings. civil /site drawings. an overall site plan, plan and profiles, sections and details, a storm water pollution prevention plan, storm water pollution details, structural drawings, process /mechanical drawings, and electrical drawings. b. ENGINEER shall provide the following deliverables for this task: Detailed design drawings and technical specifications signed and sealed by a Registered Professional in the State of Texas. 0 50% Design submittal - two full size drawings. draft specifications. 0 90% Design submittal - eight full size drawings and specifications. o Bid ready design submittal - 15 full size copies of drawings and final specifications: one set of mylar drawings and specifications will be delivered unbound. One disk will be provided with the documents in Adobe .pdf format. AACE Class 3 estimate of probable construction costs submitted with the 50% deliverable. AACE Class 2 estimate of probable construction costs submitted with the 90% deliverable. :- One set of drawings and specifications will be submitted to the Texas Commission of Environmental Quality (TCEQ) with an executive summary letter. Task 3 - Future Headworks Expansion Evaluation a. ENGINEER shall identify and evaluate future headworks upgrades to integrate the proposed ILS discharge piping with future screenings and grit removal expansion. The scope will include the following items: Review of plant record drawings, previous engineering studies / reports, flows. and historical plant operations. Limited survey of existing headworks structures, weirs, and channels. ➢ Develop up to three candidate alternatives for additional screening and grit removal in the leadworks. This data will be used to determine the spatial needs and requirements for improvements to the headworks structure. First Amendment, Page 7 ENGINEER shall provide the following deliverables for this task: a technical memorandum summarizing the results of the evaluation for ftttttre expansion, a summary of grit removal alternatives, and a recommended configuration to connect the lift station force mains to the existing facility. Upon approval the features required for future build -out (such as knock -out walls) will be incorporated into the design. Task 4 — Subcontractor Services. a. ENGINEER shall retain a professional surveyor registered in the State of Texas to provide the following services: Perform a boundary survey with metes and bounds of the Lee Heights area (location of proposed ILS). Perform a title search to identify property lines within the project work area. Provide a topographic survey of the project work area. 9 Prepare of a survey control map. Provide one -time construction staking with control points and grade stakes. Maintenance of the completed staking shall be the responsibility of the Contractor. A temporary survey monument shall be provided on the ILS property for construction purposes. b. ENGINEER shall retain a professional geotechnical engineer registered in the State of Texas to provide the following service: Collect two 50 -ft deep soil borings in the Lee Heights area to characterize the subsurface soil conditions and provide foundation construction recommendations for the lift station, the electrical control building, the emergency generator, and paving. Collect one 30 -ft deep soil boring in the roadway for construction of the new sewer. c. ENGINEER shall retain a professional engineer registered in the state of Texas to perform the following services: Traffic Control Plan for construction work in the Barrymore Blvd.. West Main Street, and Plant entrance roadways. The engineer will provide temporary traffic control designs for the safe construction of the project. 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 50% documents for the OWNER's review and comment within 90 calendar days of authorization to begin final design services and review it with the OWNER. Revise the documents in response to OWNER's and other parties' comments, as appropriate. First Amendment. Page 8 8. Provide six full size sets of 90% documents for the OWNER's review and comment within 65 calendar days after receiving OWNER'S comments on the 50% documents. 9. Revise the documents in response to OWNER's and other parties' comments, as appropriate. 10. Provide three (3) full -size sets of 100% Bidding Documents for the OWNER's review and comment within 21 calendar days after receiving OWNER'S comments on the 90% documents. 11. Revise the documents in response to OWNER's and other parties' comments, as appropriate and furnish 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. A1.02 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 Bid Openings. 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 First Amendment, Page 9 A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER. ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01. if any. I Pre - Construction Con ference. Participate 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 to the Site at least once a month 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 Contractors 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. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by First Amendment. Page 10 the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not. during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly. ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective !York. 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. Change Orders and !Fork Change Directives. Recommend Change Orders and Work Change Directives to OWNER. as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings, Samples, and Submittals. Review and approve or take other appropriate action in respect to Shop Drawings, Samples. Submittals and other data which Contractor is required to submit. but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Stich 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. First Amendment, Page 11 IL bspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections. tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections. tests, or approvals comply with the requirements of the Contract Documents, ENGINEER shall be entitled to rely on the results of such tests. 12. Decisions. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions. ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified designs 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 Contractors 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 First Amendment. Page 12 Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including final payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods. techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price. or to determine that title to any portion of the work in progress, materials. or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 14. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this information as provided by Contractor, and deliver three (3) copies of the same to OWNER. b. (Modified) Receive bonds. certificates. or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals. Shop Drawings, Samples and other data approved as provided under paragraph 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. is. 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 First Amendment. Page 13 for conformance with the Contract Documents and accurate representation of the equipment supplied by the Contractor. ENGINEER shall provide the approved Operations and Maintenance Manuals. the record drawings, and other submittals to the OWNER as well as electronic as -built drawings for the completed Project. in a format acceptable to the OWNER. 17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of ENGWEER'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 tenninate 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 62.01 of Exhibit "B" is hereby amended to add the following subsections. which shall read as follows: K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's opinion of Total Project Costs. L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition to. ENGINEER to represent OWNER at the Site. define and set forth the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER. M. Attend the pre -bid conference, pre - construction conferences, construction progress and other job related meetings. and final payment inspections. N. Provide copies of daily observation reports prepared by OWNER's on -site representative, if any, to ENGINEER during construction phase. m. Section C4.0I.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 iviethod of Payment 1. (Modified) A cost not to exceed amount of $605,888 based upon the rate schedule. which is attached as Appendix I of Exhibit C and incorporated First Amendment, Page 14 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 ........ ............................... $ 96.017 b. Final Design Phase .................... ..............................$ 381,947 c. Bidding/Negotiation Phase ....... ............................... $ 16,792 d. Construction Phase ..................................................$ 111,132 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 the following for each phase for the project, whether incurred by the ENGINEER or ENGINEER's consultant(s): a. Preliminary Design Phase .......... ............................... $ 6,990 b. Final Design Phase ..................... ............................... $ 19.665 c. Bidding/Negotiation Phase ......... ............................... $ 614 d. Construction Phase ...................... ............................... $ 4.862 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: a. Preliminary Design Phase ......... ............................... $ 35.310 b. Remaining Phases Structural.................................... ............................... $ 38,500 Geotechnical ............................... ............................... $ 16,500 Survey....................................... ............................... $ 31,339 Traffic Control ........................... ............................... $ 8.800 Exhibit E, which is attached hereto, is hereby added to this agreement and incorporated herein for all intents and purposes. First Amendment, Page 15 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 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 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 BAYTOWN By: GARRISON C. BRUMBACK, City Manager ATTEST: LETICIA GARZA, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ. SR.. City Attorney MALCOLM PIRNIE, INC. By: (Signature) (Printed Name) First Amendment, Page 16 (Title) ATTEST: (Signature) (Printed Name) (Title) RAKaren \Files\Engi neering\Fnginecring AgreementsWalcolm Pirnie \Central District Wastewater Treatment III ant \FirstAmendment.doc First Amendment, Page 17 APPENDIX 1 OF EXHIBIT C RATE SCHEDULE FOR PRELIIVHNAI2Y DESIGN PHASE ONLY Billing Project Manager I E -C. E -B $60.00 To $75.00 Senior Engineer E -A. E -6, E -5 $41.00 To $69.00 Junior Engineer E -4. E -3. E -2 $25.00 To $42.00 Senior CAD T -7. T -6. T -5 1 $27.00 To $43.00 Junior CAD j T -4. T -3. T -2 $16.00 To $28.00 Admin A -7. A -6. A -5. A -4 1 $15.00 To $32.00 Services in the Preliminary Design Phase shall be billed based upon the actual salaries times a multiplier of 3.15. RATE SCHEDULE FOR FINAL llESIGN, BIDING/NEGOTIATION, AND CONSTRUCTION PHASES Billing Description Project Manager Salary Classifications E -C. E -13 Salary $194.56 Range To $257.56 Senior Engineer E -A. E -6. E -5 $134.71 To $222.91 Junior Engineer E -4. E -3. E -2 $ 84.31 To $137.86 Senior Designer T -8 $163.06 To $197.71 Senior CAD T -7. T -6. T -5 $ 90.61 To $150.46 Junior CAD T -4. T -3. T -2 $ 55.96 To $ 93.76 Admin A -7. A -6. A -5. A -4 $ 52.81 To $106.36 Page 1 of 1 Pages (Appendix 1 of Exhibit C - Hourly Rates) This is EXHIBIT E, consisting of 2 pages. referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated .January 21. 2007. Initial: OWNER ENGINEER NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE OF T14E 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. (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) • 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 Malcolm Pirnie, Inc., dated February 11, 2009, is made by and between the same parties on the date hereinafter last specified to authorize the services necessary to provide final design services for the Central District Wastewater Treatment Plant Project(the"Project"). WITNESSETH: WHEREAS, the City of Baytown ("OWNER") and Malcolm Pirnie, Inc., ('ENGINEER") did enter into an Engineering Services Agreement, dated February 11, 2009, in an amount not to exceed ONE HUNDRED THIRTY-EIGHT THOUSAND THREE HUNDRED SEVENTEEN AND NO/100 DOLLARS ($138,317.00) 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, construction, and post-construction phase engineering services for the Project for a cost not to exceed SIX HUNDRED THIRTY THOUSAND ONE HUNDRED FIFTY-ONE AND NO/100 DOLLARS ($630,151.00); and WHEREAS, the Project shall entail engineering services necessary for the construction of a 40- mgd influent lift station, including,but not limited to, the following: 1. Influent Lift Station("ILS") a. Emergency generator and electrical building, b. Site paving and grading, c. Yard piping, d. Perimeter fence, gates and lighting, • e. ILS structural, electrical and instrumentation, and f. ILS pump system and discharge piping; and 2. Yard Piping a. Force main from ILS to the WWTP influent, includes W. Main Street crossing; and b. Reroute existing sewers and force main under W. Main Street from existing discharge to revised location; 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. First Amendment,Page 1 2. Amendments a. The scope of the services to be performed by the ENGINEER is hereby amended to include the design, bidding, construction, and post-construction phase engineering services for the Project. b. Section 3.02 is hereby amended to add subsection A,which shall read as follows: A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if OWNER delays ENGINEER's services, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement. If during such seven-day period, OWNER gives written authorization to proceed or ENGINEER'S services are no longer delayed by OWNER, ENGINEER may not suspend services under this Agreement. c. Article 5 is hereby amended to add Section 5.03 to read as follows: 5.03 ' Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. d. Section 6.01 is hereby amended to add subsection G,which shall read as follows: 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 First Amendment,Page 2 Contractor's agents or employees or any other persons (except ENGINEER's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. h. Section 6.01 is hereby amended to add subsection L,which shall read as follows: L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. i. Section 7.01.A is hereby amended to add the following definitions: 1. Addenda--Written or graphic instruments issued prior to the opening of Bids which clarify,correct,or change the Bidding Documents. 7. Bid--The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 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 First Amendment,Page 3 award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents, the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives,Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price--The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times--The numbers of days or the dates stated in the Construction Agreement to: (i)achieve Final Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 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. First Amendment,Page 4 26. General Conditions-That part of the Contract Documents which sets forth terms, conditions,and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 33. Record Drawings--The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 35. Resident Project Representative--The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 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 fmancing 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. First Amendment,Page 5 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: A1.02 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: 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 subparagraph 3.6.4 of paragraph A1.01.A.6. 4. Perform or provide the following additional final Design Phase tasks or deliverables: Task 1 Project Meetings 1.1 Kickoff Meeting ENGINEER shall within ten (10) calendar days of authorization to begin services under this Final Design Phase: a. coordinate a kickoff meeting with OWNER to establish the goals, objectives, and expectations for the project. The meeting will be held at OWNER's facilities. b. Provide the following deliverables: > Meeting agenda; and > Meeting minutes to document key decisions and agreed action items 1.2 Design Submittal Workshops ENGINEER shall within 10 days after 50% and 90% submittals are revised with OWNER's comments: a. coordinate and conduct two workshops (after the 50% and 90% submittals) with OWNER to review the milestone design submittals. The purpose of the workshop will be to clarify design First Amendment,Page 6 issues and to capture City comments to the design. The meetings. will be held at City facilities. b. Provide the following deliverables: > Workshop agendas; and > Workshop comments recorded to document key decisions and agreed action items. Task 2 - Detailed Design ENGINEER shall: a. provide detailed design, including but not limited to, detailed design drawings, bid documents, technical specifications, and cost estimates. The detailed design shall include, but not be limited to, a survey control drawing, a traffic control plan, demolition drawings, civil/site drawings, an overall site plan, plan and profiles, sections and details, a storm water pollution prevention plan, storm water pollution details, structural drawings, process/mechanical drawings, and electrical drawings. b. ENGINEER shall provide the following deliverables for this task: > Detailed design drawings and technical specifications signed and sealed by a Registered Professional in the State of Texas. o 50% Design submittal - two full size drawings, draft specifications. o 90% Design submittal - eight full size drawings and specifications. o Bid ready design submittal - 15 full size copies of drawings and final specifications; one set of mylar drawings and specifications will be delivered unbound. One disk will be provided with the documents in Adobe .pdf format. > AACE Class 3 estimate of probable construction costs submitted with the 50%deliverable. > AACE Class 2 estimate of probable construction costs submitted with the 90%deliverable. > One set of drawings and specifications will be submitted to the Texas Commission of Environmental Quality (TCEQ) with an executive summary letter. Task 3 - Future Headworks Expansion Evaluation a. ENGINEER shall identify and evaluate future headworks upgrades to integrate the proposed ILS discharge piping with future screenings and grit removal expansion. The scope will include the following items: > Review of plant record drawings, previous engineering studies / reports, flows, and historical plant operations. > Limited survey of existing headworks structures, weirs, and channels. > Develop up to three candidate alternatives for additional screening and grit removal in the headworks. This data will be used to determine the spatial needs and requirements for improvements to the headworks structure. First Amendment,Page 7 b. ENGINEER shall provide the following deliverables for this task: ➢ a technical memorandum summarizing the results of the evaluation for future expansion, ➢ a summary of grit removal alternatives, and ➢ a recommended configuration to connect the lift station force mains to the existing facility. Upon approval the features required for future build-out (such as knock-out walls)will be incorporated into the design. Task 4—Subcontractor Services. a. ENGINEER shall retain a professional surveyor registered in the State of Texas to provide the following services: > Perform a boundary survey with metes and bounds of the Lee Heights area(location of proposed ILS). > Perform a title search to identify property lines within the project work area. ➢ Provide a topographic survey of the project work area. > Prepare of a survey control map. > Provide one-time construction staking with control points and grade stakes. Maintenance of the completed staking shall be the responsibility of the Contractor. A temporary survey monument shall be provided on the ILS property for construction purposes. b. ENGINEER shall retain a professional geotechnical engineer registered in the State of Texas to provide the following service: > Collect two 50-ft deep soil borings in the Lee Heights area to characterize the subsurface soil conditions and provide foundation construction recommendations for the lift station, the electrical control building,the emergency generator, and paving. > Collect one 30-ft deep soil boring in the roadway for construction of the new sewer. c. ENGINEER shall retain a professional engineer registered in the state of Texas to perform the following services: > Traffic Control Plan for construction work in the Barrymore Blvd., West Main Street, and Plant entrance roadways. The engineer will provide temporary traffic control designs for the safe construction of the project. 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 50% documents for the OWNER's review and comment within 90 calendar days of authorization to begin final design services and review it with the OWNER. 7. Revise the documents in response to OWNER's and other parties' comments, as appropriate. First Amendment,Page 8 8. Provide six full size sets of 90% documents for the OWNER's review and comment within 65 calendar days after receiving OWNER'S comments on the 50%documents. 9. Revise the documents in response to OWNER's and other parties' comments, as appropriate. 10. Provide three (3) full-size sets of 100% Bidding Documents for the OWNER's review and comment within 21 calendar days after receiving OWNER'S comments on the 90%documents. 11. Revise the documents in response to OWNER's and other parties' comments, as appropriate and furnish 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. A1.02 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 Bid Openings,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. A1.03 Construction Phase First Amendment,Page 9 A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER,ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified)Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01,if any. 3. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work while it is in progress: a. (Modified) Make visits to the Site at least once a month 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 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 First Amendment,Page 10 the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not,during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings, Samples, and Submittals. Review and approve or take other appropriate action in respect.to Shop Drawings, Samples, Submittals and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. First Amendment,Page 11 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections,tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 12. Decisions. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality _to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's,observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER,based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon fmal 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 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 First Amendment,Page 12 Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including final payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 14. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this information as provided by Contractor, and deliver three(3)copies of the same to OWNER. b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph 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 First Amendment,Page 13 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 fmal inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, fmal payment to Contractor. Accompanying the recommendation for fmal 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 fmal 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 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 fmal payment inspections. N. Provide copies of daily observation reports prepared by OWNER's on-site representative,if any,to ENGINEER during construction phase. m. Section C4.01.A.1 of Article 4 of Exhibit"C"is hereby amended to read as follows: C4.01 For Basic Services Having A Determined Scope—Cost not to Exceed Method of Payment 1. (Modified) A cost not to exceed amount of$605,888 based upon the rate schedule,which is attached as Appendix 1 of Exhibit C and incorporated First Amendment,Page 14 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 $ 96,017 b. Final Design Phase $ 381,947 c. Bidding/Negotiation Phase $ 16,792 d. Construction Phase $ 111,132 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 the following for each phase for the project, whether incurred by the ENGINEER or ENGINEER's consultant(s): a. Preliminary Design Phase $ 6,990 b. Final Design Phase $ 19,665 c. Bidding/Negotiation Phase $ 614 d. Construction Phase $ 4,862 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: a. Preliminary Design Phase $ 35,310 b. Remaining Phases Structural $38,500 Geotechnical $ 16,500 Survey $31,339 Traffic Control $ 8,800 p. Exhibit E, which is attached hereto, is hereby added to this agreement and incorporated herein for all intents and purposes. First Amendment,Page 15 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 parties hereto have executed this First Amendment in multiple copies, each of which sh.I .deemed t e an original, but all of which shall constitute but one and the same amendment, this _y day of , 2010, the date of execution by the City Manager. CITY OF AYTO By: :-.,, , GARRI . BR BA , ity Manager A .TEST: ,�' ,YTO/q, • L" ICI•' • Pik .44 •w........°' . APPROVED •''-a>>`r;Oe°e: ACIO RAMIREZ, SR. ty Attorney MALCOLM PIRNIE, INC. By: Si ture) (Printed` Name) V i.CE P26/De„n— First Amendment,Page 16 (Title) ATTEST: (Signahrfe) �et c AQZQ/aA sS, (Printe Name) fir. AJso a' (Title) • • R:\Karen\Files\Engineering\Engineering Agreements\Malcolm Pimie\Central District Wastewater Treatment Plant\FirstAmendment.doc First Amendment,Page 17 APPENDIX 1 OF EXHIBIT C RATE SCHEDULE FOR PRELIMINARY DESIGN PHASE ONLY Billing Description Salary Classifications Salary Range Project Manager E-C, E-B $60.00 To $75.00 Senior Engineer E-A, E-6, E-5 $41.00 To $69.00 Junior Engineer E-4, E-3, E-2 $25.00 To $42.00 Senior CAD T-7, T-6, T-5 $27.00 To $43.00 Junior CAD T-4, T-3, T-2 $16.00 To $28.00 Admin A-7,A-6,A-5, A-4 $15.00 To $32.00 Services in the Preliminary Design Phase shall be billed based upon the actual salaries times a multiplier of 3.15. RATE SCHEDULE FOR FINAL DESIGN,BIDING/NEGOTIATION,AND CONSTRUCTION PHASES Billing Description Salary Classifications Salary Range Project Manager E-C, E-B $194.56 To $257.56 Senior Engineer E-A,E-6, E-5 $134.71 To $222.91 Junior Engineer E-4, E-3, E-2 $ 84.31 To $137.86 Senior Designer T-8 $163.06 To $197.71 Senior CAD T-7, T-6, T-5 $ 90.61 To $150.46 Junior CAD T-4, T-3, T-2 $ 55.96 To $ 93.76 Admin A-7,A-6,A-5, A-4 $ 52.81 To $106.36 Page 1 of 1 Pages (Appendix 1 of Exhibit C—Hourly Rates) This is EXIIIBIT E, consisting of 2 pages, • referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated January 21,2007. • Initial: OWNER ENGINEER NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: OWNER And To: CONTRACTOR The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof. By: Title: Dated: • Page 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) City of Baytown, Texas Project Name: Central District Wastewater Treatment Plant Originating Department: Engineering Date: January 22, 2010 A review of Malcolm Pirnie,John Sparks, Vice President and ARCADIS U.S.,Inc was made in accordance with 2-663 of the City of Baytown Code of Ordinances and the aforementioned company was found: O to be indebted to the City in the following areas: not to be indebted to the City. It is hereby certified the above is true and correct based on the best information available. A ss4. Director of Finance Date For information regarding this certificate, please contact the Finance Director at 281-420-6531. If an appeal to this determination is to be filed under section 2-664 of this code, please forward to the following address: City of Baytown Director of Finance P 0 Box 424 Baytown,TX 77522-0424 Orig.Dept.: File/I.D.No.: INSTRUCTION: ENTITIES USING AN ASSUMED NAME SHOULD DISCLOSE SUCH FACT TO AVOID REJECTION OF THE AFFIDAVIT. THE FOLLOWING FORMAT IS RECOMMENDED: CORPORATE/LEGAL NAME DBA ASSUMED NAME. STATE OF -6(i i S § I L § AFFIDAVIT OF OWNERSHIP OR CONTROL COUNTY OF l2 § JBEFORE ME, the undersigned authority, on this day personally appeared O H-M T. 6 PA12-14s [FULL NAME] (hereinafter "Affiant"), Me 13I o O€I'J1 [STATE TITLE/CAPACITY WITH CONTRACTING ENTITY] of monab in ?Aug)i [CONTRACTING ENTITY'S CORPORATE/LEGAL NAME] ("Contracting Entity"), who being by me duly sworn on oath stated as follows: 1. Affiant is authorized to give this affidavit and has personal knowledge of the facts and matters herein stated. 2. Contracting Entity seeks to do business with the Ci connection with C M rP �. E F4(Z �C�4 +T1 1I1CRIBE. PROJECT OR MATTER] which is expected to be in an amount that exceeds $50,000. 3. The following information is submitted in connection with the proposal, submission or bid of Contracting Entity in connection with the above described project or matter. 4. Contracting Entity is organized as a business entity as noted below (check box as applicable). FOR PROFIT ENTITY: NON-PROFIT ENTITY: [ SOLE PROPRIETORSHIP [ ]NON-PROFIT CORPORATION CORPORATION [ ] UNINCORPORATED ASSN. PARTNERSHIP [] LIMITED PARTNERSHIP [] JOINT VENTURE [] LIMITED LIABILITY COMPANY [] OTHER(Specify type in space below): fr c (co(M ?fence. ) /nc is ct /0o`70 ,A)koll y-owrgge s,or,oar 0-F Ds.J ..7 . 5. The information shown below is true and correct for the Contracting Entity and all owners of 5% or more of the Contracting Entity and, where the Contracting Entity is a non-profit entity, the required information has been shown for each officer. [NOTE: IN ALL CASES, USE FULL NAMES, LOCAL BUSINESS AND RESIDENCE ADDRESSES AND TELEPHONE Affidavit of Ownership or Control,Page 1 Orig.Dept.: File/I.D.No.: NUMBERS. DO NOT USE POST OFFICE BOXES FOR ANY ADDRESS. INCLUSION OF E-MAIL ADDRESSES IS OPTIONAL, BUT RECOMMENDED. ATTACH ADDITIONAL SHEETS AS NEEDED.] Contracting Entity Name: gkiatAA 12112,Ni 11;i I I4c, Business Address [NO./STREET] 1100 ). LOOT' &o I G16. 140 [CITY/STATE/ZIP CODE] `t VI-VONI , r)( '1102/- Telephone Number ( 7 f 3 ) 440' l51 ) Email Address [OPTIONAL] J6p6rt6eip1I`e.cons Residence Address [NO./STREET] 5164 J aco(1 c7� [CITY/STATE/ZIP CODE] 44DUS I V r (i 11 Deg fb Telephone Number [OPTIONAL] ( ) Email Address [OPTIONAL] 5% or More Owner(s)/Officers of Non-Profit Corporation (IF NONE,STATE "NONE.")n� � Name: AR04PIS 0.6. , 146. Business Address [NO./STREET] (030 TLa2G. De(V6 [CITY/STATE/ZIP CODE] thhIv lealc 12a ti i W 40 I2' Telephone Number ( 6 ib ) 3 44' 5500 Email Address [OPTIONAL] -, Residence Address [NO./STREET] [CITY/STATE/ZIP CODE] Telephone Number [OPTIONAL] ( ) Email Address [OPTIONAL] 6. Optional Information Contracting Entity and/or [NAME OF Affidavit of Ownership or Control,Page 2 Orig.Dept.: File/I.D.No.: OWNER OR NON-PROFIT OFFICER] is actively protesting, challenging or appealing the accuracy and/or amount of taxes levied against [CONTRACTING ENTITY, OWNER OR NON-PROFIT OFFICER] as follows: Name of Debtor: Type of Debt: Account Nos.: Case or File Nos.: Attorney/Agent Name: Attorney/Agent Phone No.: Delinquent Years/Months: Status of Appeal [DESCRIBE]: Affiant certifies that he or she is duly authorized to submit the above information on behalf of the Contracting Entity, that Affiant is associated with the Contracting Entity in the capacity noted above and has personal knowledge of the accuracy of the information provided herein, and that the information provided herein is true and correct to the best of Affiant's knowledge and belief. Alkil2kA... Ant SWORN O\ANInig.TBSCRIBED before me this 14 day of 3kA��9 , 2010. p .. ....F�F ��, 6 (Seal) '�Pc PGo•' ° dry � = 11 0060Z( `•. �91 � Notary public in and for the State of � O NOTE: %,,0, • ...20\o This affidavit constibiit,wa" overnment record as defined by Section 37.01 of the Texas Penal Code. Submission of a false government record is punishable as provided in Section 37.10 of the Texas Penal Code. Attach additional pages if needed to supply the required names and addresses. R:\Karen\Files\Contracts\Affidiavit of Ownership or Control.doc Affidavit of Ownership or Control,Page 3