Ordinance No. 12,063ORDINANCE NO. 12,063
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE SIXTH 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, MARCH 16, 2010, AND MAY 24, 2012, TO PERFORM
DESIGN, BID PHASE AND CONSTRUCTION PHASE SERVICES FOR THE
PIRATES BAY WATER PARK PHASE 1 EXPANSION PROJECT; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN OF AN AMOUNT NOT TO EXCEED
FIVE HUNDRED SIXTY THOUSAND THREE HUNDRED AND NO /100 DOLLARS
($560,300.00); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IF ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS
Section I: 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 Sixth 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, March 16, 2010, and May 24, 2012, to perform design, bid
phase and construction phase services for the Pirates Bay Water Park Phase I Expansion Project. A copy
of the Sixth 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., in an amount not to exceed FIVE HUNDRED SIXTY THOUSAND THREE
HUNDRED AND NO /100 DOLLARS ($560,300.00), 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 on October 1, 2012, er its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote a City Council of the City of
Baytown this the 27 "' day of September, 2012.
APPROVED AS TO F(
CICNACIO RAMIREZ, SR., C' y ttorney
R:1Karen\Fi1es \City Council\Ordinances @012 \September 27\ Kimley- Hom6thAmendment4Pirotesl3ayCxpansionPmject.doe
Exhibit "A"
SIXTH AMENDMENT
TO THE
ENGINEERING SERVICES AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES
STATE OF TEXAS
COUNTY OF HARRIS
This Sixth Amendment ("Sixth Amendment's 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, March 16, 2010, and June 6, 2012, is made by and
between the some parties on the dais hereinafter last specified to authorize the services necessary to
prepare a strategic master plain, including options, opinions of probable cost, and an opinion of financial
peuformsncs to guide the wqx mddon of the Pirates Bay Waterpark for the next five to ten years.
WHEREAS, the City of Baytown ("OWNER`) and Kimley -Horn and Associates, Inc.,
MOINEER") did enter into an Engineering Services Agreement, dated January 26, 2007
C' °7 and
WHEREAS, OWNER'S City Council approved and adopted the Aquatic Facilities Master Plan
on July 26, 2007, as prepared by We 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 Snalire the conceptual master plans, programming for two outdoor aquatic facilities at
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; 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 Amy; 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
servicxs related to the construction of one new aquatic fac111ty at the N.C. Foote Parr and
WHEREAS, 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
WHEREAS, OWNER and ENGINEER entered into the Fifth Amendment to the Agreement on
June 6, 2012, 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
Watapark far the rand five to ten years; and
WHEREAS, OWNER now wishes to amend the Agreement again to authorize the ENGINEER to
perform design, bid phase and constriction phase services for the first phase of the expansion of Pirates
Bay Waterpark 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 herew do hereby mutually agree as follows:
Definitiom . 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, Fourth, and Fifth Amendments.
2. The amendments specified in this Sixth 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 Amendnrern, the Fourth
Amendment, and the Fifth Amendment.
a i�tticle -8 "F�ilit6its aid' Special Provisions" Section 8A1- "F��hi6its-?ualed" of ffee �� - —
Agreement Is hereby amended to read as follows:
ARTICLES - EXMITS AND SPECIAL PROVISIONS
8.01 ExWbIb Included
A. ExhibitA
'ENGINEER'S Services"
B. Exhibit A -1
"Engineer's Services —N.C. Foote Path'
C. Exhibit A-2
"ENGINEER'S Services — Expansion of Pirates Bay"
D. Exhibit A -3
"ENGINEER'S Services —Expansion of Pirates Bay —
Phase 1"
E. Exhibit
"OWNER'S Responsibilities"
F. Exhibit B-1
"OWNER'S Responsibilities —N.C. Foote Parr'
G. ExiuU B-2
"OWNER'S Responsibilities — Expansion of Pirates Bay"
H. Exhibit B-3
" OWNER'S Responsibilities — Expansion of Pirates Bay
—Phase 1"
L Exhibit C
"Payments to Engineer for Services and Reimbursable
m
J. Exhibit C-1
"Payments to Engineer for Services and Reimbursable
ym�"
Expenses —N.C. Foote Park"
K Exhibit C-2
1%yment to ENGDJEER for Services and Reimbursable
Expenses — Expansion of Pirates Bay"
L. Exhibit C-3
"Payments to Engineer for Services and Reimbursable
Expenses — Expansion of Pirates Bay — Phase I"
1VL
Exhibit D
"Duties, Responsibilities and Limitations ofAuthority of
Resident Project Representative' is not used.
N.
Exhibit E
"Notice of Acceptability of World' is not used.
0.
Exhibit F
`Construction Cost Limir is not used.
P.
Exhibit G
"bsurance," consisting of two (2) pages.
Q.
Exhibit H
"Dispute Resoludon" is not used.
R.
Exhibit I
"Allocation of Risks" is not used.
S.
ExhibitJ
"Special Provisiow" is not used
T.
Exhibit K
'Indemnification" consisting of two (2) pages.
(Added)
b. The Agreement is hereby amended to add Exhibit A•3 "ENGINEER'S Services —
Expansion of Pirates Bay — Phase 4" which exhibit shall read as follows:
Exhibit A-3
ENGINEBR'S Services — Expan on of Pirates Bay — Phase I
Article I of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Expansion of Pirates Bay — Phase L llN NEER
shall provide Basic and Additional Services as set forth below.
PART 1— BASIC SERVICES (Modified)
A.1.017 Coordination and Design Management (Added)
-- -- A: yENGII1EER shell
1. Consult with OWNER to define and clarify OWNER's requirmuals for the
Project and available data
2. Advise OWNER as to the necessity of OWNER providing data or services of
the types described in Exhibit B-3, which are not part of ENGiNEER's Basic
Services, assist OWNER in obtaining such data and services, and review the
services obtained for use in desiga and construction phase services.
3. Ideafifj►, consult with. and aadym requirements of govemmeatal ages
having Jurisdiction to approve the portions of the Project designed or
specified by ENOIlMIR, including, but not limited to, mitigaft measures
Identified in the environmental ash (if any).
4. Identify and evaluate pate" solutions available to OWNER; and, aft
consultations with OWNER, recommend to OWNER those soludons which
In ENGINEER's judgment meet OWNER's requirements for the Project.
S. Attend meetings with OWNER and OWNER'S designated boards,
commissioner and/or governing body to receive input into OWNER'S
requirements for the Pn&d and evaluate potential solutions available to
OWNER.
b. Perform or provide the following additional tasks or deliverables:
Task I: Coordination and Design Management
ENGINEER will serve as flee lead design consultant and project design
team manager. Items of work included in this task are:
L Reviewing the survey and goo-technical work;
b. Assigning design team responsibilities;
c. Performing initial due diligence to determine utility services and
OWNER requirements;
d. Managing the project and directing the consulting team during the
design per,
e+ Communicating regularly with OWNER as needed; and
£ Attending design review meetings during the following phases of the
Project:
1 Schematic Design;
2. Design Development;
3. Construction Documents;
4. Bidding; and
5. Construction.
B. ENGINEER's Coordination and Design Management services will be considered
complete on the date when the construction services are accepted by OWNER.
A.1.018 (Added) Schematic Design Phase.
A. ENGIT�ER'sliall:
I. consult with OWNER to define and clarify OWNER's meats for the
Project and available data.
2. Advise OWNER as to the necessity of OWNER providing data or services of
the types described in Exhibit &3 which are not part of ENGINBER's Basic
Services, and assist OWNER in obtaining such data and services.
3. 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 tot, 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. Attend meetings with OWNER and OWNER'S designated boards,
commissions and/or governing body to receive input into OWNER'S
regr»reraerrts for the Project and evaluate potential solutions available to
OWNER.
6. Perform or provide the following additional Schematic Design tasks or
deliverables:
Task 11: Schematic Design (30 days)
ENGINEER shall perform the following services for the schematic
design for the Expansion of Pirates Bay — Phase I:
1. Prepare schematic plans, sections, and preliminary specifications for
the pools, buildings and site development showing dimensions and
features;
2. Provide an opinion of probable cost for the pools, buildings and site
development and answer questions regarding estimated cost date;
3. Provide information on finishes, equipment, lighting, outlets, pool
water supply and waste, structural design and site utilities;
4. Present the schematic designs to the OWNER and/or Its
representatives;
5. Meet with OWNER and/or its representatives to present the design
development plans;
6. Review design comments with the OWNER and/or its
regreseretatives; and
7. eumliize the schematic design package to reflect the OWNER's
changes and comments.
7. (Modified) Prepare a schematic design report (the "Report') which will, as
appropriate, contain the information specified in A1.018.A.6 as well as
schematic layouts, sketches, schedule of evens, and design criteria with
appropriate exhibits to indicate the agreed -to requirements, considerations
imiolve�d;�sud those --al� sol- ors -availab e- to w cb
ENGINEER recommends. This Report will be accompanied by
ENGD1MVs opinion of Total Project Costs for each solution which is
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 fu:dings of this phase
of work. The Report shall contain professionally written text and graphic
exhibits documenting methodology, meeting notes, program elements, and
preliminary designs for the proposed location.
8. Furnish five (5) review copies of the Report to OWNER within thirty (30)
calendar days of authorization to begin services and attend meetings as
necessary to review it with OWNER.
9. Revise the Report in response to OWNER's and other parties' comments, as
appropriate, and Finnish five (5) final copies of the revised Report to
OWNER within five (5) calendar days after completion of reviewing it with
OWNER.
10. Attend meeting(s) of the City Council to present the Report, answer any
questions and obtain the City Council's acceptance of the Report.
ENGINEER's services under the Schematic 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
A.1.022 Deslgn Developmend Construction Document Phase
A. After acceptance by OWNER of the Schematic Design Phase docutnents and
revised opinions of probable Construction Cost as detenvined in Schematic Design
Phase contained in Section A.1.017, but subject to any OWNER- directed
modifications or changes in the scope, extent, character, or design requirements of
or for the Project, and W written authorization from OWNER, ENGROM shall
perform the following Design Development Phase tasks and/or deliverables:
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 Cormactor. Specificati will bey, epine
where appropriate, m co fanunce with the I6division format of the
Consh n r Iron Specifications Institute or other format agreed to in writing by
OWNER and ENGINEER,.
2. Provide technical criteria, written descriptions, and design data as needed for
the OWNER to file applications far permits from or to obtain approvals of
governmental authorities having jurisdiction to review or approve the fmal
design of the Project and assist OWNER in consultations, if anyy, wide
appropriate authorit<es.
3. Advise OWNER of any adjustments to the opinions of probable Construction
Cost and any adjustments to Total Ned Costs lanown to ENGINEER,
Itemized as provided in paragraph A1.018A7.
4. Perform or provide the following additional Final Design Phase tasks and/or
deliverables:
Task III: Design Development (60 days)
The Design Development Phase for the Expansion of Pirates Bay —
Phase I will consist ofth following tasks:
1. Preparation of design development plans and specifications (50%
Constriction Document) for the pools, buildings, and site
development;
2. Provide an opinion of probable cost for the pools, buildings, and
site development and answer questions concaving estimated cost
data;
3. Provide information on finishes, equipment, lighting, outlets, pod
water supply and waste, structural design and site utilities;
4. Present the design development plans to the OWNER and/or its
representaflyw.
S. Review design comments with the OWNER and/or its
IMF, q � - tatives; and '
6. Futalize the design development package to reflect the OWNER's
changes.
Task IV: Construction Documents (60 Days)
The Construction Document Phase will consist of the fallowing tasks:
I. Prepare final construction plans and specifications (100%
Construction Documents) for the pools, builcluMM and site
development;
2. Provide an opinion of probable cost for the pools, buildings, and
site development and answer questions concerning estimated cost
3. Provide inibr oration on finishes, equipment, lighting outlets, pool
water supply and waste, structural design and site utilities,
4. Present the construction documents to the OWNER and/or its
representatives, which documents sball at a minimum hwhx% the
fonowing.
a. Engineering Site Plans;
b. Site development plans (layout, grading, storm sewer and
drainage areas, water and sanitary sewer, lighting power
distribution, erosion control, planting and irrigation, and
details;
c. Building plans (floor plans, elevations, section, dewls,
HVAC, plumbing, electrical, utilities for OWNER-provided
food service equipment, finishes, and structural); and
d
-Pool** layout, piping and fil tratiamipprams (sections; details, -- —
equipment, pumps, filters and chemical feed equipment );
S. Review design comments with OWNER; and
6. Finalize the construction documents to reflect the OWNER'S
changes and comments.
S. Prepare and furnish Bidding Documents for review and approval by OWNER,
its legal counsel, and ether advisors, as appropriate, and assist OWNER in the
preparation of other related documents.
6. (Added) Prepare additional line items in the Bid Tabulations, assuming the
project documentation, including plans and specificaticaL% were originapy
prepared to reflect these items, as reasonably requested by OWNER, so long as
thisRhese requests) is made prior to the preparation of the final bid documents.
7. Submit elght (8) final copies of the Bidding Documents and a revised opinion
of probable Construction Cost to OWNER within one hundred twenty (120)
days after authorization to proceed with this phase.
B. The number of prime contracts for Work designed or specified by ENGDOM
upon which the ENGINEER's compensation has been established under this
Agreement is one (1).
C. ( Modified) ENGINEER's services under the irmal Design Phase will be considered
complete on the date when the submittals required by paragraph A1.022A7 have
been delivered to and accepted by OWNER
Sixth Amendment to thl EngbIgIft Services AgEckmml
A1.032 Bidding Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent
opinions of probable Construction Cost as determined in the Design
DevelopmentlConstmction Document Phase, and upon written authorumon by
OWNER to proceed, ENGINEER shall for each phase of the Project:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals
for the Work and, where applicable, provide 15 CD's of complete 100% sets of
plans and specifications.
2. Issue Addenda as appropriate to clarify, correct', or change the Bidding
Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and
other individuals and entities proposed by Contractor for those portions of the
Work as to which such acceptability is required by the Bidding Documema.
4. ( Modified) Attend the Mandatary he-Bid Conferences, prepare Bid tabulation
sheds, coordinate the assembly of the contract documents, assist OWNER in
both evaluating Bids or proposals and awarding contracts for the Work
5. ( Added) Assist in connection with Bid protest, rebidding, or re- negotiating
contracts for construction, materials, pquipnar or services. _ _ -- -- -- -
6. ( Added) Prepare bid rooamnmendation letter and answer questions of OWNER
and any bidder during the Bidding Phase.
B. (Modified) TIw Bidding or Negotiating Phase for each phase of the Project will be
considered complete upon commencement of the Construction Phase.
A1.042 Carrstructiwr Phase
A. Upon successful completion of the Bidding Phase, and upon written autharization
from OWNER, ENGINEER shall for the Project:
Gemral Arbni dstratlon of Coastrucdon Contract. Consult with OWNER and
act as OWNER's representative as provided in the General Conditions. Ilia
extent and limitations of the duties, responsibilities and authority of
ENGR EER as assigned in said General Conditions shall not be modified,
except as ENGINEER may otherwise agree in writing, All of OWMWs
instruction to Contractor will be issued through ENGINEER, who shall have
authority to act on behalf of OWNER In dealings with Contractor to du extent
provided in this Agreement and said General Condition except as otherwise
provided In wrift
2. (Modified) Selecting hrdepenrJenr Tesfbng Laboratory. Assist OWNER in the
selection of an independent testing laboratory to perform the services identified
In paragraph B2.01.0, if any.
3. Pre -C&wV7 dvn Conference. Participate in a Pre-Constnccdon Conference
prior to commencement of wank at the Site. Provide five (5) full size sets of
1000A construction plans and specifications (Issued for construction sets) to
Contractor and provide one (1) half -size set of 1000A construction plans to
OWNER's representative.
4. Dwelbw mid Benchniarb. As appropriate, indicate on the plans any baselines
and benchmadm for locating the Work which In ENGINEER's judgment are
necessary to enable Contractor to proceed
5. Mtts to Site and Obivy Won of Construction. In connection with
observations of Contractor's work in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various
stages of corMniction, 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 ENOIIMUt,
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 Cont aetoes 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 checl®g,
selective sampling, and similar methods of general observation of the
Work based on BNOR- MBER's exercise of professional, jridSrnent as
assisted by die Resiesident "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 tnidertalmn by ENGINEER during the Construction Phase, and, in
addition, by the exercise of ENGINEER's efforts as an eoVdanced 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 timetioning whole as indicated in the Contract
Documents has been implemented and preserved by C,ontractar.
ENGDWA 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 finmishing and performing the Work Accor6ogty,
ENGINEER neither guarantees the performance of any Contractor nor
assuages 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 Ckmaector's work
be disapproved and rejected while It Is In progress I& on the basis of such
observations, ENGINEER believes that such work will not produce a
completed Project that aftMatially 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 Dock.
7. Clarifications and Irdetpretationsr Field Orders. Issue necessary clarifications
and interpretations of the Contract Documents as appae to the orderly
completion of Contractor's work. Such clarifications and interpretations will
be consistent with the intent of and reasonably inferable &+am 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 Chop Directives to OWNER, as appropriate, and prepare Lange
Orders and work Change Directives as required.
9. Shop Drawings and Samples. Review and approve or talon other appropriate
action In respect to Shop Drawings and Samples and other data which
Contractor is required to submit, but only for cam5ormence with the
information in the Contract Documents and compatibility with the
design concept of the completed Project ss -f m'W- c iing v—hir cIe -as'lnrc-&W -ia 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. ENGINEM 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-1.
11. Inspections and Tests. Require such special inspections or tests of Contractor's
work as deemed reasonably necessary, and receive and review all certificate
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 thst 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. (Modified) Dlsagri meats between OWNER and Contractor. Reader 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 flair and
not show partiality to OWNER or Conttactw.
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 Contramr be paid.
Such recommendations of payment will be in writing and will constitute
ENGINEER's representation to OWNER, based an such observations and
review, that, to the best of ENGINEER's knowledge, bdbrmaEon and
belief, Contractor's work has progressed to the point indicated, the quality
of'such work is substantially in accordance with the Contract Documents
(subject to an evaluation of the Work as a functioning whole prior to or
upon Substantial Completion, to the results of any subsequent tests called
for in the Contract Documents and to any other qualifications stated in the
recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is
ENGI NBBR'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 aduustments alloyed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph
A1.042AS.a are expressly subject to the limitations set forth in paragraph
A1.042.A.5.b and other express or general limitations in this Agreameat
an�el9ewlieie: — . ...
b. By recommending any payment, ENGINEER shall not thereby be deemed
to have represerded that observations made by ENGINEER to check the
quality or quantity of Contractor's work es it is performed and furnished
have been wrhaustive, extended to every aspect of Contractor's work in
progress, or involved detailed inspections of the Work beyond the
resgansibilities specifically, assigned to ENGINEER in this Agreement and
the Contract Documents. Neither ENGI NEBR's review of Contractor's
work for the purposes of recommending payments not 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 paftming the Work It will also not
Impose responsibft on ENGINEER to make any wanninatioa 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
time may not be other matters at issue between OWNER and Contractor
tint might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. ( Modified) Receive and review mairrumm and operating instructiorn%
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. (Modifies!) Receive bonds, certificates, or other evidence of insurance not
previously submitted and required by the Contract Doauamas, cmtficates
of inspection, tests and approvals, Shop Drawings, Samples and odor data
approved as provided under paragraph A1.042.A.9, and the aamtMed
record documab which are to be assembled by Contractor in accordance
with the Coatiact Domneals to obtain final payment. 'The eadeat of such
ENGINEEWs review will be limited as provided In paragraph
A1.042A9.
c. ENGINEER shall transmit these docrmnarts to OWNER within thirty days
of receipt of documents from Comractor.
d. ( Added) Preparing and famishing to OWNER Record Drawings showing
appropriate record information based on Project annotated record
documents received from Contractor.
e~ (Added) Assist Owner in coordinating the final ADA inspection and
provide assistance to the OWNER as necessary for project compliance.
15. (Modified) Final- Notiiie of A66*6bW- of the Work Conduct a final
inspection to determine if the completed Work of Contractor is acceptable so
that ENGINEER may recomme'ttd, in writing, final payment to Contractor.
Accompanying the recommendation for final paymer4, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the `Nodoe of
Acceptability of Work") that to the best of ENGINEER's knowledge,
information and belief and upon the exercise of ENGINE S due diligence,
the Work is acceptable and is in compliance with the Contract Doannarts.
16. Attend meetings with OWNER, its representatives and/or contractor as
necessary to enstae the Project is progressing in accordance with the Contract
Doamrents.
17. Maintain communication (phone, fa& *-mail) for the disarssion of questions
and issues as they arise throughout the Project
18. Document meetings, change orders and responses to requests for information.
19. Provide OWNER with a set of as -built documents from the Contractor.
B. Duration of Construction Phase. The Construction Phase will commence with the
execution of the fast Construction Apeanent for the Project or any part thereof
and will terminate upon final payment to Contractor. If the Project involves more
than one prime contract as indicated in paragraph A1.0228, Construction Phase
services may be rendered at different times in respect to the separate cerarac.
G Limitation of Responsibilities. ENGINEER shall not be responsible for the acs or
omissions of any Contractor, or of any of its subcontcactoM supgli=4 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 finaish the
Work In accordance with the Contract Documents.
C. The Agreement is hereby amended to add Exhibit B-3 - OWNER'S Responsibilities —
ExpaiWon of Pirates Bay —Phase I," which exhibit shall read as follows:
Exhibit B-3
OWNER'S Responsibilities — Expansion of Pirates Bay — Phase I
Article 2 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Expansion of Pirates Bay — Phase 1
B2.41 In addition to other responsibilities of OWNER as set forth in ibis Agreement,
OWNER shall:
A. Provide ENGINEER with all criteria and fltli information as to OWNER'S
requirements for the Project, including design objectives and constraints„ space, capacity
and performance regturetnents, flexibility, and expandability, and any budgetary
Limitations; and frtntish copies of all design and construction standards which OWNER will
require to be included in the Drawings and Spaxfrcaions; and furnish copies of OWNER'S
standard forms, conditions, and related documents for ENGINEER to include in the
Bidding Documents, when applicable.
B. Furnish 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 m any certain format. The
format in which the existing data and documentation will be provided shall be at the sole
discretion of the OWNER. Erdsting information may include the following:
1. Any previously prepared surveys or construction documents for project
site
2. Any plans of a fisting or proposed utilities, parking and stree% within or
adjacent to the project site.
3. Any boundary or topographic survey hdbr mation of the project sine.
4. Any geo-technical investigation information on the project site.
C. (Modified} Following ENGINEER'S assessment of initially-evailable
Project information and data and upon ENGINEER'S written request, f ndah or otherwise
make available such additional available Project related information and data as is
reasonably required to enable ENGl 6M to conmplete its Basic and Additional Services, if
MY.
D. Deleted
E. Deleted
F. (Modified) Anuge for access to and male all provisions for ENCAMER
to enter upon public and private property as required for ENGINEER to perform services
under the Agreement.
0. Ewe all alternate sohrtions, studies, reports, slewles, Drawings,
Specifications, proposals, and other documents presented by ENC 06M (including
obtaining advice of an attorney, insurance counselor, and other advisors or constiltam as
OWNER deems appropriate with respect to such examination) and render In writing timely
decisions pertaining thereto.
IL (Deleted).
(Deleted).
L Advise ENGINEER of the Identity and scope of services of any
independent cansultaats employed by OWNER to perfarm or fiaaish services in regard to
the Project, including, but not limited to, coat esfimatin& project peer review, value
engineering, and conshuctabr'lity review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
d. The Agreement is hereby amended to add G3, - Payment to Engineer for Services and
Reimbursable Expenses — Expansion of Pirates Bay — Phase I," which exhibit shall read
as follows:
Exhibit G3
Payments to Engineer for Services and Reimbursable Exp mses — Farmsion of Pirates Bay —
Phase I
Article 4 of the Agreement is amended and supplemented to include the following
agreement of the parties pertaining to the Expansion of Pirates Bay — Phase I:
ARTICLE 4 — PAYMEM TO THE EN004M
04.01 For Basic Services Ha ftA DetembW Scope
A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A-2 as
follows:
( Modified) A cost not to exceed amount of S255 based upon the rata
schedule, which Is attached to the Agreement as Appendix 1 of Exhibit C-3
and incorporated herein for all intents and purposes. This amount does not
Include those Fargineer's Consultrrt's charges as provided below in this
Article 4, Subparagraph C4.05. The cost not to exceed will be distributed at
Sixth Amendmod to the &dngdM Semi= ARzamcnt
the completion of each of the phases in an amount not exceeding the
following for each task, which amounts include the multiplier.
a. Coordination and Design Management $ 30,000
b. Schematic Design $ 30,000
C. Design DevelopmeWCcnstrudion Documents $140,000
d. Bidding $ 15,000
e. Construction Services $ 40,000
2. ( Modified) ENGINEER may with the consent of OWNER alter the
distribution of compensation between individual tasks noted herein to be
consistent with services actually rendered, but shall not exceed the total cost
not to exceed amount unless approved in writing by the OWNER
3. The cost not to exceed includes compensation for ENGINEER's services.
Appropriate amounts have been incorporated in the cost not to exceed to
account for labor, overhead, and profit.
4. Deleted
5. The portion ofthe amount billed for ENGINEER's services will be based
upon total services actually completed during the billing period.
C4.02 For Bmic Servka HavingAn Undetermuzed Scope - Direct Labor Casts 7b= a
Fc�rM -eft aldofPaj+meat
A. (Deleted).
C4.03 ForAddldonal SaWbea
A. OWNER shall pay ENGRGM for Additional Services as follows.
1. General. For services of ENGINEER's employees engaged directly on the
Project pursuant to paragraph A2.01 or A2.02 of Exhibit A-1 of the
Agreement, except for services as a consultant or witness under paragraph
A2.0l JL 13, an amount based upon the actual hours worked and the rate
schedule, which is attached as Appendix 1 of Exhibit C-3 and incorporated
herein for all intents and purposes, plus Reimbursable Expenses and
ENGINEER's Consultant's charges, if any. No Additional Services shall be
perfonn� without the prior written consent of the Owner.
2. (Deleted).
04.04 For Rdmbwable Expenses
A. ( Modified) When not included in compensation for Basic Services under
paragraph C4.01 of this Exhibit, OWNER shall pay ENGINEER for Reimbursable
Expenses as the rate set forth in Appendix 2 of Exhibit C of the Agreement. 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
between Owner and Engnew for Profession SendrAL EUe 15
ENOINEER seeks re6bumement. Reimbursable Expenses, including the factor
referenced in Section C4.04.C, shall not exceed the following for the Project pertaining to
the Expansion of Pirates Bay Wamgmk — Phase I, whether incurred by the ENOD EER
or ENGDlEER's cornultanXs):
a. 'navel Expenses $ 20AM
b. Reproduction of review plans and plan distribution $ 4,400
C. ADA Review and Inspection Fees $ 2,200
d. Miscellaneous Expenses (Express Delivery. etc.) $ 2,200
e. Reproduction of Bid Sets Allowance S 2.200
B. ( Modified) Reimbursable Expenses include the fallowing categories:
mileage, parking, tolls, long distance, reproduction of Drawings, Specifications, Bidding
Documents, and similar Project - related items in addition to those required under Exhibit
A -1, and, if authorized in advance by OWNER.
G The amounts payable to ENGDIEER for Reimbursable Expenses will be
the Project- related internal exImses actually Incurred, or allocated by ENOINEER based
upon the rate schedule for reimbursable expenses, plus all invoiced external
Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1.1.
D. (Deleted).
E. Pdd4
—N IS FoiMiVR EER's Conndltm:t's C'hargr t
A. Whenever won to ENORMER. herein is stated to
Include charges of Elgan R's Ccasulta ts, those charges shall be the amounts
billed by ENODMVs Consultants to ENGMEBR 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:
Co.» ...... .......................... » »».. »......$148.500
Davisdt Davis..».».....».....».». ».»»..... »... ».... »....... ». » ». $ 77,000
TheCore Group.»..»»...»».»».»»» ..............................» $ 27,500
Englnev* Assoclates........«.... ........ »... ». ». »..... »..... ».. $ 27,500
C4.06 DUect Labor Cates
A. (Deleted).
B. (Deleted).
4.07 Factors
A. (Deleted).
B. (Deleted).
C4.08 0dwPro Wont ConcffnhWPaymarrt
A. Progress Payments. The portion of the amounts billed for services which
are identified in paragraphs C4,01, C4.03, and C4.05 will be based on the rate schedule
for the cumulative hours charged to the Project during the billing period by all of
ENGINEER's employees and consultant(s), plus Reimbursable Expenses.
3. Entire Aga ee ment. The provisions of this Sixth Amendment, the 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 Sixth Amendment and the provisions
of the Agreement and/or the Fifth Amendment, Fourth Amendment, the Third Amendment and/or
the Second Amendment and/or the First Amendment, the provisions of this Sixth Amendment
shall control. Nothing contained in this Sixth Amendment, the 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.
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAIvIIREZ, SR., City Attorney
CITY OF BAYTOWN
By:
ROBERT D. LEIPER, City Manager
KIlVILEY -iiORN AND ASSOCIA , INC.
By: �..
(Signature)
(Printed Name)
(Title)
I .�.� '1 �J.II :. i I ! 1 � 1 1 1111 :• � 1 1 • y�/ � i '
ATTEST:
(signature)
)II`Am U.
(Panted Name)
Aqmtr Sgaotsg
(Title)
Appendix 1 to
Exhibit C -3
Rate Schedule
PdncipaU3eniorProfessional.» ..... » .... .....»»......»...»».....»...».»».......» ........... .....».................. »... ».. $200.00
Engineer/ Professionalf ....................................................................................... ................. »... ».. $175.00
Designer.......... ...................... .......................... ......................... .... »...... ................. » ................ ....$150.00
Administration/ Clerical.. ........ ». ... .. ..... _....».....»».». .......... ...... .................... .................. »............ 5100.00
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