Ordinance No. 15,116 ORDINANCE NO. 15,116
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE
CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE INTERLOCAL
AGREEMENT WITH HARRIS COUNTY FOR THE MARKET STREET
IMPROVEMENTS PROJECT; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown,Texas,hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to the First Amendment to the Interlocal Agreement
with Harris County for the Market Street Improvements Project. A copy of the amendment is attached
hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 91h day of June, 2022.
ANDON CAPETILLO, ayor
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APPROVED AS TO FORM:
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TREVOR FANNING, Interim City Attorney
R:Karen Anderson ORDINANCES 2022 2022.06.09�IstAmendment2lnterlocalAgreementWithHarrisCounty.docx
EXHIBIT "A" UPIN 21102MF 1 R201
FIRST AMENDMENT TO THE AGREEMENT BETWEEN
HARRIS COUNTY AND THE CITY OF BAYTOWN
THE STATE OF TEXAS §
COUNTY OF HARRIS §
The First Amendment to the Agreement is made and entered into by and between I larris County
(the "County"), a body corporate and politic under the laws of the State of Texas, and the City of
Baytown ("COB") pursuant to the Interlocal Cooperation Act, Tex. Gov't Code Ch. 791.001, et
seq. County and COB may each be referred to herein individually as a "Party" or collectively as
the"Parties".
Recitals
On March 8, 2022,the County and the COB entered into an agreement(the"Master Agreement") to
construct improvements to Market Street from Bayway Drive to West Sterling Avenue
The Parties now desire to amend the Master Agreement for the first time ("First Amendment") to
update the terms and funding of the Project.
Terms
I.
This First Amendment shall be governed by the Master Agreement incorporated herein by reference.
II.
Section 1. Responsibility of Parties A. County's Responsibilities (iii) is hereby amended to read as
follows:
Upon execution of the Agreement, the County shall provide an invoice to the COB for the PS&E
and utility relocation.
III.
Section 1. Responsibility of Parties A. COB's Responsibilities (v) is hereby added to read as
follows:
COB will obtain and pay for all right-of-way relocations on this Project.
IV.
Section 2. Funding of the Project A. is hereby amended to read as follows:
The County agrees to provide ($5,581,124.00) for the design and construction cost necessary for
the Project and the COB agrees to provide ($5,581,124.00) for the design and construction cost
necessary for the Project ("COB Funding Share") as generally illustrated on Exhibit 13-1 attached
hereto and incorporated herein by reference.
V.
All other terms and provisions of the Master Agreement shall remain in full force and effect as
originally written.
VI.
It is expressly understood and agreed that the Master Agreement is incorporated herein by reference.
In the event of any conflict between the terms and provisions of this Amendment, or any portion
thereof, and the terms and provisions of any other part or portion of the Master Agreement this First
Amendment shall control.
VII.
Execution, Multiple Counterparts: This First Amendment may be executed in several counterparts.
Each counterpart is deemed an original. All counterparts together constitute one and the same
instrument. Each Party warrants that the undersigned is a duly authorized representative with the
power to execute this First Amendment.
CITY OF BAYTOWN IIARRIS COUNTY
By
Name: Brandon Capetillo By:
Title: Mayor LINA HIDALGO
Date: COUNTY JUDGE
ATTEST APPROVED AS TO FORM:
CHRISTIAN D. MENEFEE
COUNTY ATTORNEY
By:
City Clerk
By:
Philip Berzins
Assistant County Attorney
C.A. File 22GEN1789
Page 2 of 4
Exhibit A-1 UP1N 21102Mb 1 R201
JOINT PARTICIPATION INTERLOCAL AGREEMENT
This Joint Participation Interlocal Agreement("Agreement") is entered into by and between Harris
County ("County")and City of Baytown ("COB")pursuant to the Interlocal Cooperation Act,Tex. Gov't
Code Ch. 791.001, et seq. County and COB may each be referred to herein individually as a "Party" or
collectively as the "Parties".
RECITALS
WHEREAS, it is of mutual benefit to both Parties to construct improvements to Market Street from
Bayway Drive to West Sterling Avenue ("Project"), as generally illustrated on Exhibit A attached hereto
and incorporated herein by reference;
WHEREAS, both Parties desire to cooperate in accordance with the terms of this Agreement to
jointly accomplish the construction of the Project; and
WHEREAS, both Parties agree that all funds used under this Agreement shall be from current fiscal
funds.
NOW THEREFORE, in consideration of the mutual promises, obligations, and benefits herein set
forth, the Parties agree as follows:
TERMS
Section 1. Responsibilities of the Parties
A. County's Responsibilities
(i) The County will provide or cause to be provided, engineering services and related support
services necessary to prepare plans, specifications, and estimates ("PS&E") for the
construction of the Project.
(ii) The County shall be responsible for obtaining all necessary permits and jurisdictional
approvals for construction of the project in accordance with Section 2 of this agreement.
(iii) Upon execution of the Agreement, the County shall provide an invoice to the COB for the
PS&E, right-of-way relocations, and utility relocation
(iv) Upon completion of the PS&E the County will submit the PS&E to the COB for review and
approval.
(v) Upon approval by the COB of the PS&E, the County will advertise for and receive bids for
construction of the Project, in a manner similar to that of other County projects.
(vi) Upon receipt of bids for the construction of the Project the County shall:
(a) Determine the lowest and best bidder and provide the bids to the COB with its
recommendation for award of the construction contract to such lowest and best
bidder, as determined by the Harris County Commissioners Court; and
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(b) Provide an invoice to the COB for their cost share percentage for construction of
the project in accordance with Section 2 of this agreement.
(vii) Upon award of a contract for construction of the Project, the County will:
(a) Manage and inspect the construction of the Project in a manner similar to that of
other County construction projects; and
(b) Through its contractor, construct the Project in accordance with the PS&E
approved by the COB. The County may make minor changes in the PS&E through
change(s) in contract ("CIC") that the County deems to be necessary or desirable
during the construction of the Project, so long as the original scope and intent of
the Project is maintained.
(viii) Upon completion of the construction of the Project, the County shall:
(a) Provide an opportunity for the COB to participate in a final walk-through and
preparation of a punch list in regards to the construction of the Project; and
(b) Provide a statement of final accounting to the COB detailing all construction costs
incurred and identify amount(s) to be invoiced or refunded to the COB; and
B. COB's Responsibilities
(i) COB will review the PS&E provided by the County and provide its approval within ten(10)
business days. Should the COB desire to make changes to such PS&E, the Parties agree to
meet and resolve all issues within ten (10) business days of the COB's receipt of the PS&E
in order to finalize an agreed upon PS&E for the Project. If the COB does not provide a
response on the PS&E provided by the County within ten (10) business days from its receipt
of the PS&E,then the PS&E submitted to the COB by the County will be deemed approved.
(ii) Upon receipt of the bids and award recommendation from the County for construction of the
Project, the COB will review the bids and provide concurrence for award of the construction
contract to such lowest and best bidder within five (5) business days from receipt of the
recommendation from the County. If the COB does not provide a response on the
construction contract award recommendation within five (5) business days from its receipt
of the recommendation from the County, then the recommendation submitted to the COB
will be deemed approved; and
(iii) COB shall remit payment to the County for the COB Funding Share for the Project in
accordance with Section 2 of this agreement.
(iv) Upon completion and acceptance of the Project, the County will remove the section of
roadway from the County Road Log and the COB will assume maintenance of the roadways
and all improvements.
Section 2. Fundiniz of the Proiect
Notwithstanding any provision in this Agreement to the contrary, the following provisions will
apply to all payments made under this Agreement:
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A. The County agrees to provide($5,581,124.00)for the design and construction cost necessary for the
Project and the COB agrees to provide ($5,581,124.00) for the design and construction cost
necessary for the Project and ($1,425,000.00) for right-of-way acquisition cost ("COB Funding
Share") necessary for the construction of the Project as generally illustrated on Exhibit B attached
hereto and incorporated herein by reference.
B. The COB agrees to provide payment of the COB Funding Share to the County within thirty (30)
business days of receipt of an invoice.
C. Parties agree that any costs incurred during the project or other work to be performed under this
Agreement in excess of the contract amount may be funded by the COB.
Section 3. Term and Termination
A. This Agreement shall commence upon final execution by all the Parties (the "Effective Date") and
shall remain in full force and effect until the completion of construction of the Project or the
County's receipt of all payments due from the COB under this Agreement, whichever occurs later
("Term").
B. This Agreement may be terminated by the County before award of the construction contract and at
any time by mutual written consent of the Parties, or as otherwise provided under this Agreement.
Section 4. Limitation of Anpropriation
A. COB understands and agrees, said understanding and agreement also being of the absolute essence
of this Agreement, that the County is not currently appropriating any funds for the Project. County
may appropriate funds to complete the Project, but such funds shall not under any conditions.
circumstances, or interpretations thereof exceed the sum certified available by the Barris County
Auditor.
B. COB understands and agrees, said understanding and agreement also being of the absolute essence
of this Agreement, that failure of the Harris County Auditor to certify funds or to certify sufficient
funding for any reason shall not be considered a breach of this Agreement.
Section 5. Miscellaneous
A. Non-Assignability. The County and the COB bind themselves and their 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.
Neither the County nor the COB shall assign,sublet,or transfer its interest in this Agreement without
the prior written consent of the other Party
B. Notice. Any notice required to be given under this Agreement ("Notice") shall be in writing and
shall be duly served when it shall have been (a) personally delivered to the address below, (b)
deposited, enclosed in a wrapper with the proper postage prepaid thereon, and duly registered or
certified, return receipt requested, in a United States Post Office, addressed to County or the COB
at the following addresses:
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COB: City of Baytown
2123 Market Street
Baytown, TX, 77520
Attention: Frank Simoneaux, P.E., MBA
Email: Frank.simoneauxLa)bavtown.or
Attention: Andrea Brinkley
Email: andrea.brinkley@baytown.org
County: Harris County Engineering Department
I I I I Fannin, I I th Floor
Houston, Texas 77002-1893
Attention: Interagency Agreement Coordinator
Any Notice given by mail hereunder is deemed given upon deposit in the United States Mail and
any Notice delivered in person shall be effective upon receipt.
Each Party shall have the right to change its respective address by giving at least fifteen (15) days'
written notice of such change to the other Party.
Other communications,except for Notices required under this Agreement,may be sent by electronic
means or in the same manner as Notices described herein.
C. Independent Parties. It is expressly understood and agreed by the Parties that nothing contained in
this Agreement shall be construed to constitute or create a joint venture, partnership, association or
other affiliation or like relationship between the Parties, it being specifically agreed that their
relationship is and shall remain that of independent parties to a contractual relationship as set forth
in this Agreement. The County is an independent contractor and neither it, nor its employees or
agents shall be considered to be an employee, agent, partner, or representative of the COB for any
purpose. The COB, nor its employees, officers, or agents shall be considered to be employees,
agents, partners or representatives of the County for any purposes. Neither Party has the authority
to bind the other Party.
D. No Third Party Beneficiaries. This Agreement shall be for the sole and exclusive benefit of the
Parties and their legal successors and assigns. The County is not obligated or liable to any party
other than the COB for the performance of this Agreement. Nothing in the Agreement is intended
or shall be deemed or construed to create any additional rights or remedies upon any third party.
Further, nothing contained in the Agreement shall be construed to or operate in any manner
whatsoever to confer or create rights or remedies upon any third party, increase the rights or
remedies of any third party,or the duties or responsibilities of County with respect to any third party.
E. Waiver of Breach. No waiver or waivers of any breach or default (or any breaches or defaults) by
either Party hereto of any term, covenant, condition, or liability hereunder, or the performance by
either Party of any obligation hereunder, shall be deemed or construed to be a waiver of subsequent
breaches or defaults of any kind, under and circumstances.
F. No Personal Liability: No Waiver of Immunity.
(1) Nothing in the Agreement is construed as creating any personal liability on the part of
any officer, director, employee, or agent of any public body that may be a Party to the
Agreement,and the Parties expressly agree that the execution of the Agreement does not
create any personal liability on the part of any officer, director,employee, or agent of the
County.
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(2) The Parties agree that no provision of this Agreement extends the County's liability
beyond the liability provided in the Texas Constitution and the laws of the State of Texas.
(3) Neither the execution of this Agreement nor any other conduct of either Party relating to
this Agreement shall be considered a waiver by the County of any right, defense, or
immunity on behalf of itself, its employees or agents under the Texas Constitution or the
laws of the State of Texas.
G. Applicable Law and Venue. This Agreement shall be governed by the laws of the State of Texas
and the forum for any action under or related to the Agreement is exclusively in a state or federal
court of competent jurisdiction in Texas. The exclusive venue for any action under or related to the
Agreement is in a state or federal court of competent jurisdiction in Houston, Harris County, Texas.
H. No Binding Arbitration; Right to Jury Trial. The County does not agree to binding arbitration, nor
does the County waive its right to a jury trial.
I. Contract Construction.
(1) This Agreement shall not be construed against or in favor of any Party hereto based
upon the fact that the Party did or did not author this Agreement.
(2) The headings in this Agreement are for convenience or reference only and shall not
control or affect the meaning or construction of this Agreement.
(3) When terms are used in the singular or plural, the meaning shall apply to both.
(4) When either the male or female gender is used, the meaning shall apply to both.
J. Recitals. The recitals set forth in this Agreement are, by this reference, incorporated into and
deemed a part of this Agreement.
K. Entire Agreement; Modifications.This Agreement contains the entire agreement between the Parties
relating to the rights herein granted and the obligations herein assumed. This Agreement supersedes
and replaces any prior agreement between the Parties pertaining to the rights granted and the
obligations assumed herein. This Agreement shall be subject to change or modification only by a
subsequent written modification approved and signed by the governing bodies of each Party.
L. Severability. The provisions of this Agreement are severable, and if any provision or part of this
Agreement or the application thereof to any person, entity, or circumstance shall ever be held by
any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder
of this Agreement and the application of such provision or part of this Agreement to other persons,
entities, or circumstances shall not be affected thereby.
M. Survival of Terms. Any provision of this Agreement that, by its plain meaning, is intended to
survive the expiration or earlier termination of this Agreement shall survive such expiration or
earlier termination. If an ambiguity exists as to survival, the provision shall be deemed to survive.
N. Multiple Counterparts/Execution. This Agreement may be executed in several counterparts. Each
counterpart is deemed an original and all counterparts together constitute one and the same
instrument. In addition,each Party warrants that the undersigned is a duly authorized representative
with the power to execute the Agreement.
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O. Warranty. By execution of this Agreement, the COB warrants that the duties accorded to the COB
in this Agreement are within the powers and authority of the COB.
HARRIS COUNTY CITY OF BAYTOWN
By: By: 9x, Q —
Lina Hidalgo Name
County Judge Title CA
APPROVED AS TO FORM: ATTEST
CHRISTIAN D. MENEFEE
County Attorney By:
Philip Aerzins 0 �► r ti
Assistant County Attorney �qr��F
CAO File No.: 21GEN3583
Tfv
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EXHIBIT'A'
PROJECT LOCATION AND LIMITS
MARKET STREET FROM BAYWAY TO WEST STERLING DRIVE
IN BAYTOWN,TEXAS— HARRIS COUNTY PRECINCT 2
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Harris County Key Maps 690K and 690L
Market Street ILA
Cost Breakdown
Nov. 29, 2021
EXHIBIT V
ts: Market Street from Bayway to West Sterling Drive Precinct 2
Description Cost Limit
ty Precinct 2 Design and Construction $ 5,581,124.00 NOT TO EXCEED
)wn Design and Construction 5,581,124.00
)wn Right-of-Way 1,425,000.00
$ 12,587,248.00
Exhibit B-1
EXHIBIT B
City of Baytown
Pct 2
22-Apr-22
Estimated Cost
Description (Estimate Used In Agreement)
Exceed $5,581,124.00
-Contribution Cost $5,581,124.00
Subtotal $11,162,248.00
$11,162,248.00
ORDER OF COMMISSIONERS COURT
The Commissioners Court of Barris County, Texas, met in regular session at its regular
term at the Harris County Administration Building in the City of Ilouston, Texas, on
, with all members present except
A quorum was present. Among other business, the following was transacted:
ORDER AUTHORIZING
AGREEMENT SUPPLEMENT BETWEEN
HARRIS COUNTY AND THE CITY OF BAYTOWN
FOR THE FIRST AMENDMENT TO THE INTERLOCAL AGREEMENT
Commissioner introduced an order and moved that
Commissioners Court adopt the order. Commissioner seconded the
motion for adoption of the order. The motion,carrying with it the adoption of the order, prevailed
by the following vote:
Yes No Abstain
Judge Lina Hidalgo [ ] [ ] [ ]
Comm. Rodney Ellis [ ] [ ] [ ]
Comm. Adrian Garcia [ ] [ ] [ ]
Comm. Tom S. Ramsey, P.E. [ ] [ ] [ ]
Comm. R. Jack Cagle [ ] [ ] [ ]
The meeting chair announced that the motion had duly and lawfully carried, and this order
was duly and lawfully adopted. The order adopted follows:
IT IS ORDERED that:
1. The Harris County Judge is authorized to execute the attached Agreement Supplement
between Barris County and the City of Baytown for the First Amendment to the Interlocal
Agreement.
2. The Harris County Engineering Department and all other Harris County officials and
employees are authorized to do any and all things necessary or convenient to accomplish the
purpose of this Order.
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