Ordinance No. 1,030N
ORDINANCE NO. 1030
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
APPROVING A CONTRACT BY AND BETWEEN THE CITY OF BAYTOWN AND
BAYTOWN ENGINEERING COMPANY AND LANGFORD ENGINEERING COMPANY,
ACTING AS JOINT VENTURERS, CONCERNING THE EMPLOYMENT OF THE
SAID ENGINEERING FIRMS TO PERFORM PROFESSIONAL ENGINEERING
AND ARCHITECTURAL SERVICES; AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE AND ATTEST SAID CONTRACT FOR AND ON BEHALF
OF THE CITY OF BAYTOWN; EXPRESSLY APPROVING THE FORM AND SUB-
STANCE OF SAID CONTRACT; AND ALL ITS TERMS, PROVISIONS AND
CONDITIONS; AND PROVIDING FOR THE EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN:
Section 1: That the Mayor is hereby authorized to execute, and
the City Clerk to attest, a contract by and between the City of Baytown
and Baytown Engineering Company and Langford Engineering Company, joint-
venturers, concerning the employment of the said engineering firms to
perform professional engineering and architectural services in connection
with the 1970-1975 Capital Improvements Program, recently approved in
a Capital Improvements Bond election on the 17th day of March, 1970.
Section 2: That the City Council hereby approves the form
and substance of said contract, and all of its terms, provisions, and
conditions. A true and correct copy of said contract is attached hereto
as Annex "A".
Section 3: That this ordinance shall take effect from and after
its passage by the affirmative vote of the City Council of the City of
Baytown, Texas.
INTRODUCED, READ and PASSED by the affirmative vote of the City
Council of the City of Baytown, this the 11th day of June, 1970.
C. GLEN WALKER, Mayor
ATTEST:
EDNA OLIVER, City Clerk
APPROVED:
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WILLIAM R. LAUGHLIN, City AtUrney
THE STATE OF TEXAS
COUNTY OF HARRIS
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AGREEMENT FOR ENGINEERING SERVICES
THIS AGREEMENT made, entered into, and executed this the 11 rn
day of J U n e, , 1970, by and between the City of Baytown, Texas, acting
herein by and through its Mayor who is duly authorized so to act for and
in behalf of said City, hereinafter called the "OWNER ", and Baytown Engineering
Company, Inc. & Langford Engineering Company, hereinafter called the "ENGINEERS ".
WITNESSETH, that whereas the Owner intends to construct improve-
ments designated as the 1970 -1975 Capital Improvements Program. Such
Capital Improvement Program is hereinafter referred to as the "PROJECT ".
NOW THEREFORE, the OWNER and the ENGINEERS in consideration of
the mutual covenants and agreements herein contained do mutually agree as
follows:
SECTION I
EMPLOYMENT OF ENGINEER
The OWNER agrees to employ the ENGINEERS and the ENGINEERS agree
to perform professional engineering and architectural services in connection
with the PROJECT as stated in the sections to follow, and for having rendered
such services, the OWNER agrees to pay to the ENGINEERS compensation as
stated in the sections to follow.
SECTION II
CHARACTER AND EXTENT OF SERVICES
The ENGINEERS shall render the following professional services
necessary for the development of the PROJECT:
A. Preliminary Phase
(1) Attend preliminary conferences with the OWNER regarding
the PROJECT.
ANNEX "A"
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(2) Prepare preliminary engineering studies and reports on
the various phases of the PROJECT in sufficient detail
to indicate clearly the problems involved and the al-
ternate solutions available to the OWNER; to include
preliminary layouts, sketches and cost estimates for
each particular phase of the PROJECT, and to set forth
clearly the ENGINEER'S recommendations.
(3) Furnish the OWNER up to 20 copies of all preliminary
reports, including preliminary layouts, sketches and
cost estimates.
B. Design Phase
(1) Establish the scope of any soil and foundation investi-
gations or any special surveys and tests which, in the
opinion of the engineers, may be required for design; ar-
range for such work to be done.
(2) Furnish to the OWNER, where required by the circumstances
of the assignment, the engineering data necessary for ap-
plications for routine permits by local, state, and federal
authorities (including the engineering data required for
a federal grant under the Public Law 660 Program).
(3) Perform field surveys to collect information which is re-
quired in the design of the PROJECT. (Not included in
basic percentage charge for the Design Phase.)
(4) Prepare detailed specifications and contract drawings, in
pencil on paper, for construction authorized by the OWNER.
These designs shall in all respects combine the applica-
tion of sound engineering principles with a high degree
of economy, and shall be submitted to the applicable state
and federal agencies for approval.
(5) Prepare detailed cost estimates and proposals of authorized
construction, which shall include summaries of bid items
and quantities which will be based, wherever practical,
on the unit price system of bidding. The ENGINEERS will
use their best efforts to see that these estimates reflect
current costs for similar work in the PROJECT area, but
they shall not be required to guarantee their accuracy.
(6) Furnish to the OWNER all necessary copies of approved
plans, specifications, notices to bidders, and proposals.
All sets of plans in excess of 25 are to be paid for
separately by OWNER, at current commercial rates.
C. Construction Phase
(1) Assist the OWNER in the advertisement for bids on the
various phases of the PROJECT.
(2) Assist in the preparation of formal contract documents
for the contracts.
(3) Make periodic visits to the site (as distinguished from
the continuous services of a resident Representative) to
observe the progress and quality of the executed work and
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to determine in general if the work is proceeding in
accordance with the Contract Documents. The ENGINEERS
will not be required to make exhaustive or continuous
on -site inspections to check the quality or quantity
of the work or material, but will be responsible for making
sufficient on -site inspections so as to determine the tech-
niques of the work performed, as well as the sequences of
construction, where such sequences are determined by the
Contract Documents. The ENGINEERS will be responsible for
reporting to the OWNER any failure of the contractors to
perform the construction work in accordance with the Con-
tract Documents. On the basis of on -site observations as
experienced and qualified design professionals, ENGINEERS will
also keep the OWNER informed of the extent of progress of
the work and advise thi OWNER of material and substantial
defects and deficiencies in the work of contractors which
are discovered by ENGINEERS or otherwise brought to the
ENGINEERS' attention in the course of construction, and
may, on behalf of the OWNER, execute whatever rights the
OWNER may have to disapprove work and materials as failing
to conform to the Contract Documents.
(4) Consult and advise with the OWNER; act as the OWNER'S re-
presentative at the sites; issue all instructions to the
contractor requested by the OWNER, and prepare routine
change orders as required.-
(5) Furnish the services of resident Representatives, and other
field personnel as required by the OWNER, for continuous
on- the -site observation of construction and for the per-
formance of required construction !layout surveys (not in-
cluded in the basic percentage charge for Construction
Phase). The authority and duties of the resident Repre-
sentatives are limited to examining the materials fur-
nished and observing the work done, and reporting their
findings to the ENGINEERS. The ENGINEERS will use the
usual degree of care and prudent judgment in the selection
of competent Representatives, and the ENGINEERS will use
their best efforts to see that the Representatives are on
the job to perform their required duties. It is agreed,
however, that the ENGINEERS do not underwrite, guarantee
or insure the work done by the contractors, and, since it
is the contractor's responsibility to perform the work in
accordance with the Contract Documents, the ENGINEERS are
not responsible or liable for the contractor's failure to
do so, and, so long as ENGINEERS have exercised the usual
degree of care and prudent judgment in selecting Represen-
tatives and have used their best efforts to see that they
are on the job to perform the work, failure by any Repre-
sentatives or other personnel engaged in on- the -site ob-
servation to discover defects or deficiencies in the work
of the contractors shall never relieve the Contractors for
liability therefor or subject the ENGINEERS to any liability
for any such defects or deficiencies.
(6) Check and approve samples, catalog data, schedules, shop
drawings, laboratory, shop and mill tests of materials and
equipment and other data which the contractors are required
to submit, only for conformance with the design concept of
the PROJECT and compliance with the information given by the
Contract Documents; and assemble written guarantees which
are required by the Contract Documents.
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(7) Prepare monthly and final estimates for payments to contractors,
and furnish to the OWNER any necessary certifications as to
payments to contractors and suppliers.
(8) Conduct, in company with the OWNER, a final inspection of
each particular phase of the PROJECT for conformance with
the design concept and compliance with the Contract Documents,
and approve in writing final payment to the Contractors.
(9) Revise contract drawings, with the assistance of the resident
Representative, to show the work as actually constructed.
The original revised contract drawings shall become the pro-
perty of the OWNER, as in the case of all other drawings under
this contract.
SECTION III
AUTHORIZATION OF SERVICES
No professional services of any nature shall be undertaken by
the ENGINEERS under this Agreement until they have received written authori-
zation from the OWNER, in which the following elements are specified:
(1) The nature of the particular assignment.
(2) The scope of the services to be performed.
(3) The exact basis of payment for the services to be performed.
(4) A citation of the Act of the City Council under which the
assignment was authorized and the appropriation was made.
(5) Any credit provisions to which the OWNER is entitled.
(6) The time allowed the ENGINEERS for the performance of the
services.
SECTION IV
PERIOD OF SERVICE
This Agreement shall be effective upon execution by the OWNER
and the ENGINEERS and shall remain in force for a period which may reasonably
be required for the preliminary studies and reports, the design, award of
contracts and the construction of the PROJECT, including extra work and
any required extensions thereto. The final acceptance by the OWNER of
each construction contract in the PROJECT shall serve as evidence under
this contract, insofar as they pertain to that section (phase) of the PROJECT.
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SECTION V
COORDINATION WITH OWNER
The ENGINEERS shall hold periodic conferences with the OWNER, or
its representatives, to the end that the PROJECT, as perfected, shall have
full benefit of the OWNER'S experience and knowledge of existing needs and
facilities, and be consistent with its current policies and construction
standards. To implement this coordination, the OWNER shall make available
to the ENGINEERS, for use in planning the PROJECT, all existing plans,
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maps, field notes, statistics, computations and other data in its possession
relative to existing facilities and to the PROJECT.
SECTION VI
THE ENGINEERS' COMPENSATION
For and in consideration of the services to be rendered by
the ENGINEERS, the OWNER shall pay, and the ENGINEERS shall receive the
a
compensation hereinafter set forth, for the Preliminary, Design, and
Construction Phases of the work and for Special Services, not included
in these phases. Where the compensation is based on a percentage of con-
struction cost, the charge for each separate phase shall be based on the
"construction cost" of all work included in the 1970 -1975 Capital Improve-
ments Program.
"Construction cost" is defined as the total cost to the OWNER
for the execution of the work authorized, excluding fees or other costs
for engineering and legal services, the cost of land, rights -of -way,
legal and administrative expenses; but including the direct cost to the
OWNER of all construction contracts, items of construction, including
labor, materials and equipment, required for the completed work (including
extras) and the total value at site of PROJECT of all labor, materials and
equipment purchased or furnished directly by the OWNER for the PROJECT.
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In the event that proposals for construction of any of the work
authorized in the Design Phase are received within 120 days after submis-
sion of completed contract drawings and specifications to the OWNER by the
ENGINEERS, the charge for the corresponding services in the Design Phase
and charge for the corresponding services in the Preliminary Phase shall
be adjusted to the "construction cost" as reflected by the lowest acceptable
proposal, or lowest bona fide bid, if no contract is awarded. Where no
proposals or bona fide bids are received, the ENGINEERS' estimates shall
be the basis for final payment for these two phases. No reduction shall
be made from the percentage charge on account of penalties or liquidated
damages or other sums withheld from contractor's payments.
A. Preliminary Phase
Payment for services in the Preliminary Phase shall be
made to the ENGINEERS in a sum equal to the percentage of
the "construction cost" in this phase of the PROJECT, as de-
termined by the following classification percentage charges:
Classification A - 1.09
Classification B - 0.88
The classification of the construction work (Classification
"A" or "B ") for the purpose of applying the alternate percentages is
that given in Section V of the 1967 Manual of Professional Practice,
General Engineering Services, of the Texas Society of Professional
Engineers, except that it is agreed and understood, that for the
purposes of this contract, steel water storage tanks shall be con-
sidered as being Classification "B" construction work.
In the event this contract is cancelled or terminated by
OWNER, for any reason, prior to the time that engineering services
are authorized in the Preliminary Phase for a total "construction
cost in excess of $10,000,000.00, the payments for services there-
tofore made to ENGINEERS under such Phase shall be adjusted so as
to yield to ENGINEERS fees consistent with the following schedule:
Construction Cost Classification A Classification B
Under $5,000,000.00 1.17 0.96
Over $5,000,000.00 to
$10,000,000.00 . 1.12 0.91
Payment for services authorized in the Preliminary Phase
shall be due upon the completion of such services; provided, how-
ever, that the requirement by OWNER to make such payments shall be
subject to the provisions of Section VII hereof.
B. Design Phase
Payment for services in the Design Phase shall be made to
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the ENGINEERS in a sum equal to the percentage of the "construction
cost" in this phase of the PROJECT, as determined by the following
classification percentage charges:
Classification A - 3.54
Classification B - 2.86
The classification of the construction work (Classification
"A" or "B ") shall be as defined hereinbefore.
In the event this contract is cancelled or terminated by
OWNER, for any reason, prior to the time that engineering services
are authorized in the Design Phase for a total "construction
cost" in excess of $10,000,000.00, the payments for services there-
tofore made to ENGINEERS under such Phase shall be adjusted so as
to yield to ENGINEERS fees consistent with the following schedule:
Construction Cost
Classification A Classification B
Under $5,000,000.00 3.80 3.11
$5,000,000.00 to
$10,000,000.00 3.63 2.96
Any engineering services performed under the Design Phase
of this contract for which the OWNER already has plans, that
are to be incorporated into the PROJECT, may be compensated for
on a per diem basis rather than on a percentage basis, at the
option of OWNER.
Partial payments for services in the Design Phase shall be
made monthly, based on the ENGINEERS' estimate of the "construction
cost" of the work. Payments will be made in proportion to that part
of the services in the Design Phase which have been accomplished,
as evidenced by monthly statements submitted by the ENGINEERS to
the OWNER, and approved by it. Final payment for services au-
thorized in the Design Phase shall be due upon the completion of
these services; provided, however, that the requirement by OWNER
to make such payments shall be subject to the provisions of Section
VII hereof.
C. Construction Phase
Payment for services in the Construction Phase shall be
made to ENGINEERS in a sum equal to the percentage of the "con -
struction cost" in this phase of the PROJECT as determined by the
following classification percentage charges:
Classification A - 0.82
Classification B - 0.66
The classification of the construction work (Classification
"A" or "B ") shall be as defined hereinbefore.
In the event this contract is cancelled or terminated by
OWNER, for any reason, prior to the time that engineering services
are authorized in the Construction Phase for a total "construction
cost" in excess of $10,000,000.00, the payments for services there-
tofore made to ENGINEERS under such Phase shall be adjusted so as
to yield to ENGINEERS fees consistent with the following schedule:
Construction Cost
Under $5,000,000
$5,000,000.00 to
$10,000,000.00
Classification A
0.88
0.83
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Classification B
0.72
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This sum will be paid in monthly installments in proportion
to the "construction cost" completed, on the basis of the ENGINEERS'
estimate prepared for monthly payments to contractors, plus the
actual value of all materials and equipment purchased or furnished
directly by the OWNER for the PROJECT. Upon completion of all
work authorized in the Construction Phase, the ENGINEERS will be
paid the remainder of the charge for this phase.
D. Special Assignments and Services Not Included in Above Percentage Charges.
The charges above described in the Preliminary, Design and
Construction Phases shall provide compensation to the ENGINEERS
for all services called for under this Agreement to be performed
by them, or under their direction, except the services set forth below.
The ENGINEERS will furnish the OWNER a schedule of current
salaries of staff members who will be used i6 the performance of
the excluded services. The OWNER will use this schedule as a
basis for verifying the ENGINEERS' billing for these services,
unless subsequently modified with the approval of the OWNER.
These excluded services and Special Assignments, and the
compensation to be paid by the OWNER to the Engineers for their
performance, as required, are as follows:
Services Basis of Compensation
(1) Field surveys to collect information 4 man field party $21.80 /hr.
required for design. (Design Phase Only) 3 man field party 17.85/hr.
2 man field party 13.90 /hr.
(2) Construction layout surveys. Same hourly rate as set forth
(Construction Phase Only). in (1) above.
(When the ENGINEERS stipulate to OWNER that the salaries of staff
members used under (1) and (2) above have increased in amounts equi-
valent to more than 20% of their salaries at the time of the exe-
cution of this agreement, the hourly charge for the services indicated
in (1) and (2) above shall be automatically increased by 20% of
such stated hourly rates.)
(3)
Services of a resident Representa-
Salary cost times a multiplier of
tive, and other field personnel as
2.00. Reimbursement for direct
required, for on- the -site observa-
non -labor expense and subcontract
tion of construction. (Construction
expense at invoice cost plus 10%
Phase Only.)
service charge.
(4)
Land surveys, and establishment of
Same hourly rates as set forth
boundaries and monuments.
in (1) above.(Subject to adjustment
as above indicated)
(5)
Preparation of property or easement
Salary cost times a multiplier of
descriptions.
2.25. Reimbursement for direct non -
labor expense plus a 10% service charge
(6)
Preparation of any special reports
Salary cost times a multiplier of
required for marketing of bonds.
2.25. Reimbursement for direct
non -labor expense plus a 10%
service charge.
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(7) Appearances before regulatory
agencies.
(8) Assistance to the OWNER as an ex-
pert witness in any litigation with
third parties, arising from the de-
velopment or construction of the
PROJECT.
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Salary cost times a multiplier of
2.25. Reimbursement for direct
non -labor expense plus a 10%
service charge.
$150 per diem for each day,
or part thereof, in which
ENGINEERS' presence is required
by OWNER.
(9) Special investigations involving de- Salary cost times a multiplier of
tailed consideration of operation, main- 2.25. Reimbursement for direct
tenance and overhead expenses; pre- non -labor expense plus a 10%
paration of rate schedules, earnings service charge.
and expense statements, special fea-
sibility studies, appraisals, valuations,
and material audits or inventories re-
quired for certification of force ac-
count construction performed by the OWNER.
(10) Soil and foundation investigations,
including test borings, soil tests
and analyses of test results.
(11) Detailed mill, -shop and /or laboratory
inspection of materials or equipment.
(a) Furnished directly by the
OWNER, or (b) by ENGINEER at
salary cost times a multiplier of
2.25 and reimbursement for direct
non -labor expense and subcontract
expense at invoice cost plus a 10%
service charge.
(a) Furnished directly by the
OWNER or (b) by ENGINEER at salary
cost times a multiplier of 2.25
and reimbursement for direct non -
labor expense and subcontract ex-
pense at invoice cost plus a 10%
service charge.
(12) Extra travel required of the ENGINEERS Cost of travel and living expenses
and authorized by the OWNER from plus a 10% service charge.
Baytown to points other than Harris
County in connection with the PROJECT.
(13) Additional copies of reports and ad- Salary cost times a multiplier of
ditional copies of drawings and 1.75. Reimbursement for direct
specifications over number stipulated non -labor expense at invoice cost
hereinbefore. plus a 10% service charge.
(14) Preparation of applications and sup- Salary cost times a multiplier of
porting documents for government 2.25. Reimbursement for direct
grants. non -labor expense plus a 10%
service charge.
Payments to the ENGINEERS for authorized services not in the
percentage charges will be made monthly, by the OWNER, upon pre-
sentation of monthly statements by the ENGINEERS of such services.
"Salary cost" is defined as the hourly rate paid to the particular
staff employee involved. For the purpose of this Agreement, the
salary cost of the ENGINEERS' Principals is established as $8.50 per
hour. It is understood and agreed that A. J. Busch, Jr., Ivan
Langford, James A. Davis and Bill Burge are to be considered
ENGINEERS' Principals.
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SECTION VII
olftk
Notwithstanding anything herein to the contrary, the OWNER shall
not be required to make any partial payment to ENGINEERS under this
Agreement until OWNER determines that sufficient moneys are available
from the sale of bonds to provide such payment or payments. The decision to
sell bonds shall rest solely with OWNER. Should payment for services accrued
be deferred because of the unavailability of bond money, OWNER agrees to pro-
vide ENGINEERS with proper documents evidencing fees earned but unpaid.
Should OWNER elect to defer the payment of fees to ENGINEERS
because of the unavailability of bond money on any partial statement
beyond one hundred either (180 days from the date such statements
are payable, OWNER agrees to pay to ENGINEERS, in addition to the
sum shown due by such statement, interest thereon at the rate of eight
(8%) percent per annum, said interest to accrue from and after one
hundred eighty (180) days from the date shown due, as provided herein,
until fully paid. The payment of such interest shall fully liquidate
any injury to the ENGINEERS arising from such delay in payment; provided,
however, the right is expressly reserved to ENGINEERS in the event
payments are not made as herein provided, at any time thereafter to
treat the Agreement as terminated by the OWNER and recover compensation
as provided by Section X of this Agreement.
SECTION VIII
REVISION TO DRAWINGS AND SPECIFICATIONS
The ENGINEERS will make, without expense to the OWNER, such
revisions of the preliminary drawings as may be required to meet the needs
of the OWNER, but after a definite plan has been approved by the OWNER,
if a decision is subsequently made by the OWNER which, for its proper exe-
cution, involves extra services and expenses for changes in, or addition
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to, the drawings, specifications, or other documents, or if the ENGINEERS
are put to labor or expense by delays imposed on them from causes not
within their control, such as by the readvertisement of bids or by the de-
linquency or insolvency of contractors, the ENGINEERS shall be compensated
for such extra services and expense, which services and expense shall not
be considered as covered by the percentage charge stipulated in this Agreement.
Compensation for such extra services shall be at salary cost times a mul-
tiplier of 2.25, and reimbursement for direct non -labor expense and sub-
contract expense at invoice cost plus a 10% service charge.
SECTION IX
OWNERSHIP OF DOCUMENTS
Original documents, design and survey notes represent the pro-
duct of training, experience, and professional skill, and accordingly be-
long to, and remain the property of the ENGINEERS who produce them, regardless
of whether the instruments are copyrighted or whether the project for
which they were prepared is executed; provided, however, that the original
drawings and specifications prepared under each phase of this PROJECT shall
become the property of the OWNER upon the completion of each such phase
of the PROJECT.
SECTION X
TERMINATION
Either party to this Agreement may terminate the Agreement
by giving to the other thirty (30) days' notice in writing. Upon delivery
of such notice by the OWNER to the ENGINEERS, and upon expiration of the
thirty (30) day period, the ENGINEERS shall discontinue all services in
connection with the performance of this Agreement and shall proceed to
cancel promptly all existing orders and contracts insofar as such orders
or contracts are chargeable to this Agreement. As soon as practicable after
receipt of notice of termination, the ENGINEERS shall submit a statement,
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showing in detail the services performed under this Agreement to the date
of termination. The OWNER shall then pay the ENGINEERS promptly that por-
tion of the prescribed charges which the services actually performed under
this Agreement bear to the total services called for under this Agreement,
less such payments on account of the charges as have been previously made.
If OWNER terminates this Agreement, the fees earned by the ENGINEERS are sub-
ject to adjustment if engineering services for construction costs totalling
less than $10,000,000.00 have been assigned at the time of termination,
as heretofore provided. No such adjustment shall be made if ENGINEERS
terminate this Agreement and the fees shall be calculated on the over
$10,000,000.00 percentage charge regardless of total construction costs
for which engineering services have been assigned at the time of termination.
The originals of all completed or partially completed plans and specffications
prepared under this Agreement shall be delivered to OWNER when and if this
Agreement is terminated, and the same shall become the property of OWNER.
SECTION XI
SUCCESSORS AND ASSIGNMENTS
The OWNER and the ENGINEERS each binds himself and his successors,
executors, administrators and assigns to the other party of this Agreement
and to the successors, executors, administrators and assigns of such other
party, in respect to all covenants of this Agreement, except as above,
neither the OWNER nor the ENGINEERS shall assign, sublet or transfer their
interest in this Agreement without the written consent of the other. Nothing
herein shall be construed as creating any personal liability on the part
of any officer or agent of any public body which may be a party hereto.
IN TESTIMONY OF WHICH this instrument has been executed on behalf
of the above -named ENGINEERS, and has been executed on behalf of the OWNER
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in four (4) counterparts, each of equal force, on the clay and year first
above written.
CITY OF BAYTOWN
B y
ATTEST: C. GLEN WALKER,Mayor
EDNA OLIVER, City Clerk
r�
WILLIAM R. LAUGHLIN, City Att•rney
.ATTEST:
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By.
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By
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BAYTOWN ENGINEERING CO., INC.
--a' . Pre -