Ordinance No. 11,942ORDINANCE NO. 11,942
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE FIFTH AMENDMENT TO THE STANDARD FORM OF
AGREEMENT WITH KIMLEY -HORN AND ASSOCIATES, INC, DATED
JANUARY 26, 2007, AND AMENDED ON OCTOBER 23, 2007, JANUARY 18, 2008,
OCTOBER 12, 2009, AND MARCH 16, 2010, TO PREPARE A STRATEGIC
MASTER PLAN, INCLUDING OPTIONS, OPINIONS OF PROBABLE COST, AND
AN OPINION OF FINANCIAL PERFORMANCE TO GUIDE THE EXPANSION OF
THE PIRATES BAY WATERPARK FOR THE NEXT FIVE TO TEN YEARS;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN OF AN AMOUNT OF
THE SUM OF FIFTY THOUSAND AND NO 1100 DOLLARS ($50,000.00); AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute and the City Clerk to attest to the Fifth Amendment to the Standard Form of
Agreement with Kimley -Hom and Associates, Inc., dated January 26, 2007, and amended on October 23,
2007, January 18, 2008, October 12, 2009, and March 16, 2010, to prepare a strategic master plan,
including options, opinions of probable cost, and an opinion of financial performance to guide the
expansion of the Pirates Bay Waterpark for the next five to ten years. A copy of the Fifth Amendment is
attached hereto as Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Kimley-
Hom and Associates, Inc., of the sum of FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00),
pursuant to the Amendment.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO /100 DOLLARS
($50,000.00) or less; however, the original contract price may not be increased by more than twenty-five
percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor
to such decrease.
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 vo of the City Council of the City of
Baytown this the 24"' day of May, 2012. A
APPROVED AS TO FORM:
NACIO RAMIREZ, SR, City orney
\ \Cobfs01\legahKaren \Fi1es \City Council\ Ordinances\ 2012N 1ay24% imleyHom5lhAmendment4PimlesBayExpmsionPmjmt .doe
Exhibit "A"
FIFTH AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS
COUNTY OF HARRIS
This Fifth Amendment ( "Fifth Amendment") to the Standard Form of Agreement between the
City of Baytown and Kimley -Horn and Associates, Inc., dated January 26, 2007, and amended on
October 23, 2007, January 18, 2008, October 12, 2009, and March 16, 2010, is made by and between the
same parties on the date hereinafter last specified to authorize the services necessary to prepare a strategic
master plan, including options, opinions of probable cost, and an opinion of financial performance to
guide the expansion of the Pirates Bay Waterpark for the next five to ten years.
W I T N E S S H T H:
WHEREAS, the City of Baytown ( "OWNER ") and Kimley -Horn and Associates, Inc.,
( "ENGINEER ") did enter into an Engineering Services Agreement, dated January 26, 2007
( "Agreement "); and
WHEREAS, OWNER'S City Council approved and adopted the Aquatic Facilities Master Plan
on July 26, 2007, as prepared by the ENGINEER; and
WHEREAS, OWNER and ENGINEER entered into the First Amendment to the Agreement on
October 23, 2007, for preliminary design services and programming for two outdoor aquatic facilities at
the Wayne Gray Sports Complex and N.C. Foote Park and one water spray ground at McElroy Park in
accordance with the approved City of Baytown Aquatic Facilities Master Plan (the "First Amendment ");
and
WHEREAS, OWNER and ENGINEER entered into the Second Amendment to the Agreement on
January 18, 2008,
to finalize the conceptual master plans, progamming for two outdoor aquatic facilities at
Wayne (fray Sports Complex and N.C. Foote Park and one water spray ground at
McElroy Park in accordance with the approved City of Baytown Aquatic Facilities
Master Plan; and
2. to prepare completion construction documents, to advertise for bid and to provide
services related to the construction of one new aquatic facility at Wayne Gray Sports
Complex (the "Second Amendment "); and
WHEREAS, OWNER and ENGINEER entered into the Third Amendment to the Agreement on
October 12, 2009, to prepare completion construction documents, to advertise for bids and to provide
services related to the construction of one new aquatic facility at the N.C. Foote Park; and
WIIF.RFAS, OWNER and ENGINEER entered into the Fourth Amendment to the Agreement on
March 16, 2010, to authorize the ENGINEER to provide additional services regarding the new aquatic
facility at the N.C. Foote Park; and
Fifth Amendment to the t:n ina ecring Services Agreement
hetween Owncr and liaginecr for Professional Services. Pic 1
WHEREAS, OWNER now wishes to amend the Agreement again to authorize the ENGINEER to
prepare a strategic master plan, including options, opinions of probable cost, and an opinion of financial
performance to guide the expansion of the Pirates Bay Waterpark for the next five to ten years; and
WHEREAS, ENGINEER desires to perform such services on behalf of OWNER;
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby mutually agree as follows:
I Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this Addendum shall have the same meanings as in the Agreement and the First, Second,
third and Fourth Amendments.
2. Amendments. The amendments specified in this Fifth Amendment shall be particular to the
strategic master plan for the expansion of Pirates Bay Waterpark and are meant to supplement the
Agreement, the First Amendment, the Second Amendment the Third Amendment, and the Fourth
Amendment.
a. Article 8 "Exhibits and Special Provisions," Section 8.01 "hxhibits Included" of the
Agreement is hereby amended to nod as follows:
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS
8.01 Exhibits Included
A.
Exhibit A
"ENGINEER'S Services"
B.
Exhibit A -1
"Engineer's Services — N.C. Foote Park"
C.
Exhibit A -2
"ENGINEER'S Services — Expansion of Pirates Bay"
D.
Exhibit B
"OWNER'S Responsibilities"
E.
Exhibit B-1
"OWNER'S Responsibilities — N.C. Foote Park"
F.
Exhibit 13,2
"OWNER'S Responsibilities -- Expansion of Pirates Bay"
G.
Exhibit C
"Payments to Engineer for Services and Reimbursable
Expenses"
H.
Fxhibit G 1
"Payments to Engineer for Services and Reimbursable
Expenses — N.C. Foote Park"
I.
Exhibit C-2
"Payment to ENGINEER for Services and Reimbursable
Expenses — Expansion of Pirates Bay"
J.
Exhibit D
"Duties, Responsibilities and Limitations of Authority of
Resident Project Representative" is not used.
K.
Exhibit E
"Notice of Acceptability of Work" is not used.
L.
Exhibit F
"Construction Cost Limit" is not used.
M.
L'xhibit G
"Insurance," consisting of two (2) pages.
N.
Exhibit 11
"Dispute Resolution" is not used.
O.
Exhibit i
"Allocation of Risks" is not used.
P.
F,xhibit J
"Special Provisions" is not used.
Q.
Exhibit K
"Indemnification" consisting of two (2) pages.
(Added)
Fifth Amendment to the Unninwrina Services Aercemcnt
bgtween Owner gnd Engineer for Profmional Servigpl.1 qg 2
b. The Agreement is hereby amended to add Exhibit A -2 "ENGINEER'S Services
Expansion of Pirates Bay," which exhibit shall read as follows:
Exhibit A -2
ENGINEER'S Services — Expansion of Pirates Bay
Article I of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Expansion of Pirates Bay. ENGINF.F.R shall
provide Basic and Additional Services as set forth below.
PART I — BASIC SERVICES (Modified)
A 1.01 Conceptual Design Phase
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER'S requirements for the
Project and available data.
2. Advise OWNER as to the necessity of OWNER'S providing data or services
of the types described in Exhibit B which arc not part of ENGINEER'S Basic
Services, and assist OWNER in obtaining such data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental
authorities having jurisdiction to approve the portions of the Project designed
or specified by ENGINEER, including, but not limited to, mitigating
measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER; and, after
consultations with OWNER, recommend to OWNER those solutions which
in ENGINEER'S judgment meet OWNER'S requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards,
commissions and/or governing bodies to receive input into OWNER'S
requirements for the Project and evaluate potential solutions available to
OWNER.
b. (Modified) Perform or provide the following additional Conceptual Design
Phase tasks or deliverables:
Task I: Waterpark Visits
Services: The F.NGINF.F.R and Counsilman -I iunsaker, its consultant,
will visit three or four existing waterparks with the OWNER in
the Dallas/Fort Worth area, which parks may include, but not
be limited to, the following:
y NRH2O,
Hurricane Harbor,
Z Hawaiian Falls Roanoke, and
y Hawaiian Falls Mansfield.
Fifth Amendment to the Enaincering Services Agreement
between Owner and Engincer for Professional Services. Page 3
The intent of these visits will be to look for ideas for
attractions and support spaces that could be incorporated into
the master plan for Pirates Bay Waterpark Expansion Project.
Deliverables: Meeting Notes from Site Visit.
Task II: Pirates Bay Visit and Design Programming
Services: After visiting the waterparks in the Dallas -Fort Worth area, the
ENGINEER and Counsilman- Hunsaker, its consultant, will
conduct a two -day work session with the OWNER in
Baytown. On day one. ENGINEER and its consultant will
spend a day of observation at the park in operation to identify
needs, opportunities, and constraints. This will be followed by
a committeelstaff meeting to summarize findings from the
waterpark visits and to confirm the design program for the
Pirates Bay Waterpark Expansion Project utilizing an
interactive PowerPoint presentation. Photographs of the
various new and interesting aquatic features will be shown as
well as support spaces (bathhouses, deck, service, and parking)
along with the corresponding opinions of costs so that the
ENGINEER and OWNER can rank the desired features. The
end result will be a design program matrix with a three- tiered
ranking of the desired aquatic facility features for the OWNER
and a commentary on the pros and cons of the existing and any
proposed sites.
Deliverables: Meeting Notes, Design Program Matrix, PowerPoint
Presentation.
Task III: Conceptual Design Options and Opinions of Probable Cost
Services: Utilizing the design program matrix, existing plans, updated
topographic mapping, and City of Baytown aerial photographs,
the ENGINEER will then work with the OWNER to develop a
conceptual design illustrating the attractions and support
spaces to be added to the waterpark. During the development
of the conceptual design, three options will be developed with
opinions of probable cost for review with the OWNER in an
internet meeting. Following the internet meeting, the
conceptual designs will then be finalized in the form of colored
master plan option exhibits of the new aquatic facility and the
opinion of financial performance will be developed.
Deliverables: Meeting Notes, PowerPoint Presentation with Options and
Costs.
Task IV: Opinion of Financial Performance
Services: The ENGINEER shall conduct an analysis of factors impacting
the marketability and financial viability of Pirates Bay
Waterpark related to the proposed master plan. Issues to be
addressed by the ENGINEER include, but are not limited to,
the following:
Fifth Amendment to the Fn ig ncering Services Agreement
betwtcn Owner and Engineer for Professional 5cyicgsLP_Pgc 4
Physical aspects of the park, including attractions mix,
support facilities, site characteristics, ingress/egress,
accessibility, visibility and surrounding land uses;
Y Operational data including records of attendance levels
and trends, visitor mix, per capita expenditures, revenue,
operating expenses, net operating income and net income
after capital costs;
A review of marketing strategies, pricing policies and
sponsorship efforts;
An analysis of market penetration, based on comments
from the OWNER'S staff and attendance data combined
with the ENGINEER'S demographic data bank;
> The compilation of demographic trends in Baytown's
market area, including population levels and trends,
incomes, age distribution and ethnic composition;
Projections of attendance potential at the waterpark over a
5 -10 year period;
➢ Projections of design level attendance figures and required
capacity requirements;
➢ Projections of financial performance at each waterpark,
assuming the park is expanded to accommodate projected
growth potential; and
D Preliminary estimates of warranted investment levels,
based on projected net operating income. The initial
findings of the above will be presented to the OWNER in
an internet meeting to receive comments and direction for
preparation of a final presentation.
Deliverables: PowerPoint Presentation with Information from Task IV and
Opinion of Financial Performance.
7. (Modified) Prepare a master plan report (the "Report") which will, as
appropriate, contain the information specified in Al.01.A.6 as well as
schematic layouts, sketches, schedule of events, and conceptual design
criteria with appropriate exhibits to indicate the agreed -to requirements,
considerations involved, and those alternate solutions available to OWNER
which ENGINEER recommends. This Report will be accompanied by
ENGINEER'S opinion of Total Project Costs for each solution which is so
recommended for the Project with each component separately itemized,
including the following, which will be separately itemized: opinion of
probable Construction Cost, allowances for contingencies and for the
estimated total costs of design, professional, and related services provided by
ENGINEER and, on the basis of information furnished by OWNER,
allowances for other items and services included within the definition of
Total Project Costs. The Report shall summarize the findings of Tasks I
through IV as described above. The Report shall contain the completed
master plan and other professionally written text and graphic exhibits
documenting methodology, meeting notes, program elements, final
conceptual designs for the proposed waterpark expansion, opinions of
probable cost, and the opinion of financial performance.
Filch Amendment to the Engineering Services Agreement
between Owner and I-nginecr for Professional Services. Pine 5
8. Fumish five (5) review copies of the Draft Report to OWNER on or before
July 16, 2012, and attend meetings as necessary to review it with OWNER.
9. Revise the Draft Report in response to OWNER'S and other parties'
comments, as appropriate, and furnish ten (10) final copies of the revised
Report to the OWNER within five (5) calendar days after completion of
reviewing it with OWNER.
10. (modified) Attend a joint meeting of the City Council and the Parks Board on
July 26, 2012, to present the Report and a PowerPoint presentation of the
final conclusions and designs for Pirates Bay Waterpark Expansion Project,
answer any questions and obtain the City Council's acceptance of the Report.
B. (Modified) ENGINEER'S services under the Conceptual Design Phase will be
considered complete on the date when the final copies of the revised Report have
been delivered to and accepted by OWNER.
A1.02 Final Design Phase (Deleted in its entirety)
A 1.03 Bidding or Negotiating Phase (Deleted in its entirety)
A1.04 Construction Phase (Deleted in its entirety)
A1.05 Post - Construction Phase (Deleted in its entirety)
C. The Agreement is hereby amended to add Exhibit B -2 "OWNER'S Responsibilities —
Expansion of Pirates Bay," which exhibit shall read as follows:
Exhibit B-2
OWNER'S Responsibilities — Expansion of Pirates Bay
Article 2 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the expansion of Pirates Bay.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,
OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER'S
requirements for the Project, including design objectives and constraints. space, capacity
and performance requirements, flexibility, and expandability, and any budgetary
limitations; and furnish copies of all design and construction standards which OWNER will
require to be included in the Drawings and Specifications; and furnish copies of OWNER'S
standard forms, conditions, and related documents for ENGINEER to include in the
Bidding Documents, when applicable.
B. Fumish to ENGINEER any other available information pertinent to the
Project including reports and data relative to previous designs, or investigation at or
adjacent to the Site. Nothing contained in this Exhibit or in this Agreement shall be
construed to require the OWNER to provide such records in any certain format. The
format in which the existing data and documentation will be provided shall be at the sole
discretion of the OWNER. Existing information may include the following:
Fifth Amendment to the Engineering Services Agreement
b wcen Owner and Engincer for Prof6sional ScnJecs -Page G
1. Any previously prepared surveys or construction documents for project
site.
2. Any plans of existing or proposed utilities, parking and streets, within or
adjacent to the project site.
3. Any boundary or topographic survey information of the project site.
4. Any geo- technical investigation information on the project site.
C. (Modified) Following ENGINEER'S assessment of initially - available
Project information and data and upon ENGINEER'S written request, furnish or otherwise
make available such additional available Project related information and data as is
reasonably required to enable ENGINEER to complete its Basic and Additional Services, if
any.
D. Deleted
E. Deleted
F. (Modified) Arrange for access to and make all provisions for ENGINEER
to enter upon public and private property as required for ENGINEER to perform services
under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings,
Specifications, proposals, and other documents presented by ENGINEER (including
obtaining advice of an attorney, insurance counselor, and other advisors or consultants as
OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Deleted).
(Deleted).
J. Advise ENGINEER of the identity and scope of services of any
independent consultants employed by 0WNER to perform or furnish services in regard to
the Project, including, but not limited to, cost estimating, project peer review, value
engineering, and eonstructability review.
K. Deleted
I.. Deleted
M. Deleted
N. Deleted
d. The Agreement is hereby amended to add C -2, "Payments to Engineer for Services and
Reimbursable Expenses— Expansion of Pirates Bay," which exhibit shall read as follows:
Exhibit C -2
Fifth Amendment to the Enainecxina Services Agreement
he�vreen (?umer And Fn�eineer for Pn►fessinnul Services F,�7
Payments to Engineer for Services and Reimbursable Expenses — Expansion of Pirates Bay
Article 4 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the aquatic facility at N.C. Foote Park:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services HavingA Determined Scope
A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A-
2 as follows:
1. (Modified) the amount of $5Q,00 0 which amount includes those
ENGINEER'S Consultant's charges and all reimbursable expenses. The fee
will be distributed once a month at the completion of each of the phases as
determined by the OWNER in the following amounts, which amounts
include any multiplier:
a. Conceptual Design Phase
Task 1
$
3,000
Task 11
$
12,000
Task III
$
15,000
Task IV
$
15,000
Final Report and Presentation
$
5,000
2. Deleted
3. The amount of compensation specified hereinabove includes compensation
for all of ENGINEER'S services. Appropriate amounts have been
incorporated in the such amount to account for labor, overhead, and profit.
4. Deleted.
S. Deleted.
C4.02 For Basic Services HavingAn Undetermined Scope —Direct I,abor Costs 71mes a
Factor Method r f Paymenr
A. (Deleted).
C4.03 For Additional Services
A. (Deleted).
C4.04 For Reimbursable Expenses
A. (Deleted).
B. (Deleted).
C. (Deleted).
Fifth Amendment to the Fpginccring Services Agreement
between Owner and Engineer f2r Professional Services. I'm c-8
D. (Deleted)
E. (Deleted)
C4.05 For ENGINEER :S Consultant's Charges
A.
(Deleted).
C4.06 Direct Labor Costs
A.
(Deleted).
B.
(Deleted).
4.07 Factors
A.
(Deleted).
B.
(Deleted).
C4.08 Other Provisions Concerning Payment
A. (Deleted).
Entire Agreement. The provisions of this Fifth Amendment, the Fourth Amendment, the 'Third
Amendment, the Second Amendment, the First Amendment and the Agreement should be read
together and construed as one agreement provided that, in the event of any conflict or
inconsistency between the provisions of this Fifth Amendment and the provisions of the
Agreement and/or the Fourth Amendment, the Third Amendment and/or the Second Amendment
and/or the First Amendment, the provisions of this Fifth Amendment shall control. Nothing
contained in this Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second
Amendment, the First Amendment, or in the Agreement shall be construed in any way to limit or
to waive the City's sovereign immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the same
amendment, this ^ day of _ , 2012, the date of execution by the City
Manager.
CITY OF BAYTOWN
By:
ROBERT D. LEIPER, City Manager
Fitch Amendment to the tan ineering Services Agrreemcnt
bcivyjcn Owner and I nnincer for Proressional Services. Page 9
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS 7'0 FORM:
IGNACIO RAMIREZ, SR., City Attorney
KIMLEY -HORN AND ASSOCIATES, C.
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l-ilih Amendmcnt to the l:nginecring Services Agreement
between Owner and Engineer for Professional Services. Pape 10