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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: 7" /11114n 4, 4A 1'�'4�jo' WIC WILLIAM R. LAUGHLIN, City AtUrney THE STATE OF TEXAS COUNTY OF HARRIS W 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" W (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 -2- 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. -3- ig (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. -4- 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, 0 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. -5- W 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 M M 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 -7- Classification B 0.72 MM-11 59 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. W (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. M 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. M A0*11 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 M 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, -11- 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 -12- (' 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: ----------- By. WI By If BAYTOWN ENGINEERING CO., INC. --a' . Pre -