Ordinance No. 16,058 ORDINANCE NO. 16,058
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A TEMPORARY POSSESSION AND USE AGREEMENT WITH
SPECIALTY CONSTRUCTION TX, LLC FOR PROPERTY LOCATED AT 407 WEST
PEARCE AVENUE BAYTOWN, TEXAS IN CONNECTION WITH THE WEST
TEXAS AVENUE DRAINAGE IMPROVEMENT 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 a Temporary Possession and Use Agreement
with Specialty Construction TX, LLC for the West Texas Avenue Drainage Improvement Project. A copy
of said agreement is attached hereto as Exhibit "A" and incorporated herein 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 affir /evoof t Cit Council of the City of
Baytown this the 23'day of January, 2025.
L S J SON, Mayor �
A ST:
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ANGEL A J1CI `C t Clerk-. 'c" ?
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APPROVED S T FO�:�
SCOTT LEIN OND, City Attorney
R:\Ordinances and Resolutions Ordinance DraftsQ025-01-23\Authorizing Temporary Possession & Use Agreement.Specialty Construction
TX-West Texas Ave Drainage Project.kh.docx
EXHIBIT "A"
TEMPORARY POSSESSION AND USE AGREEMENT FOR WEST TEXAS AVENUE
DRAINAGE IMPROVEMENT PROJECT-RELATED PURPOSES WITH
ADDITIONAL PAYMENT OF INDEPENDENT CONSIDERATION
In connection with the construction contract for the West Texas Avenue Drainage Improvements
Project awarded to Specialty Construction TX.LLC("Contractor")by the City of Baytown,Texas,
a home-rule municipality ("Grantor') on October 24, 2024 ("Agreement"), this Temporary
Possession and Use Agreement for West Texas Avenue Drainage Improvement Project-Related
Purposes("Possession and Use Agreement")between Grantor and Contractor,grants to Contractor
a temporary tight to possession and use of the Grantor's property for the purpose of creating and
maintaining a laydown yard in connection with the West Texas Avenue Drainage Improvement
Project (the "Drainage Improvement Project"). The property subject to this Possession and Use
Agreement is described more fully in "Exhibit A",attached and made a part of this Possession and
Use Agreement by reference (the "Property").
1. For the consideration paid by Contractor which is set forth in Paragraphs 2 and 3
below, the receipt and sufficiency of which is acknowledged, the Grantor grants and conveys to
Contractor a temporary right of entry, possessions, and use of the Property for the purpose of
creating and maintaining a laydown yard in connection with the Drainage Improvement Project.
This temporary right of entry,possession,and use of the Property shall last from February 1,2025
until December 31,2025.
2. In full consideration for this temporary grant of possession and use, and other
Grantor covenants, warranties, and obligations under this Possession and Use Agreement,
Contractor will tender to the Grantor the sum of ONE DOLLAR AND NOCENTS ($1.00) per
month. Grantor agrees that this sum represents adequate and full compensation for the temporary
possession and use of the Property.
3. The purpose of this Possession and Use Agreement is to allow Contractor to
proceed with its Drainage Improvement Project without delay. The parties expressly acknowledge
that the proposed Drainage Improvement Project is for a valid public use. Further. Contractor
shall:
a. Maintain the property in accordance with all applicable City ordinances,
and Federal and State laws and regulations;
b. Apply, pay for,and maintain all applicable permits;
c. Fence the entirety of the property in such a manner as to prevent the Stored
Materials from being seen from the street, with applicable City setbacks.
d. Store only waterline pipe, heavy equipment, box culvert, light poles (the
"Stored Materials'.
e. Not store fill or chemicals on the Property in any quantity.
f. At the completion of the project, contractor shall restore the property to
equal or better condition.
Contractor understands and agrees that its failure to comply with any or all provisions of this
paragraph 3 and/or any breach of the Agreement may result in the immediate termination of this
Possession and Use Agreement without the right to notice of default or the opportunity to cure.
4. Contractor will record this document.
5. Indemnification and Release
CONTRACTOR AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND GRANTOR, ITS OFFICERS,AGENTS,AND EMPLOYEES
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF
ACTION,SUITS AND LIABILITY OF EVERY KIND,INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY
BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION
WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR
SUPPLIER COMMITTED BY THE CONTRACTOR OR CONTRACTOR'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH
CONTRACTOR EXERCISES CONTROL (COLLECTIVELY, CONSULTANT'S
PARTIES). IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH
CONTRACTOR AND GRANTOR, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS INDEMNITY BY CONTRACTOR TO INDEMNIFY AND PROTECT
GRANTOR FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN
WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE, AS WELL AS THE
CONSULTANT'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS,AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE
NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST
GRANTOR FROM WHICH GRANTOR IS INDEMNIFIED, CONTRACTOR FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO GRANTOR THE INDEMNITY PROVIDED
HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF
THIS AGREEMENT.
By this Agreement, Grantor does not consent to litigation or suit, and the Grantor
hereby expressly revokes any consent to litigation that it may have granted by the terms of
this Agreement or any other contract or agreement, any charter, or applicable state law.
Nothing herein shall be construed so as to limit or waive the Grantor's sovereign immunity.
Contractor assumes full responsibility for its services performed hereunder and hereby
releases, relinquishes and discharges the Grantor, its officers, agents, and employees from
all claims, demands, and causes of action of every kind and character, including the cost of
defense thereof,for any injury to or death of any person(whether they be either of the parties
hereto, their employees, or other third parties) and any loss of or damage to property
(whether the property be that of either of the parties hereto,their employees,or other third
parties) that is caused by or alleged to be caused by, arising out of, or in connection with
Contractor's senrices to be performed hereunder. This release shall apply with respect to
Contractor's services regardless of whether said claims, demands, and causes of action are
covered in whole or in part by insurance.
6. This Possession and Use Agreement has been made under and shall be governed
by the laws of the State of Texas.The parties further agree that performance and all matters related
thereto shall be in Harris County,Texas.
7. This Possession and Use Agreement shall not bestow any rights upon any third
party, but rather, shall bind and benefit Contractor and the Grantor only.No person or entity not a
signatory to this Possession and Use Agreement shall be entitle to rely on Contractor's
performance of its services hereunder. and no right to assert a claim against Contractor by
assignment of indemnity rights or otherwise shall accrue to a third party as a result of this
Possession and Use Agreement or the performance of Contractor's services hereunder.
8. Notwithstanding anything to the contrary contained in this Possession and Use
Agreement,Grantor and Contractor hereby agree that no claim or dispute between the Grantor and
Contractor arising out of or relating to this Possession and Use Agreement shall be decided by any
arbitration proceeding, including,without limitation,any proceeding under the Federal Arbitration
Act(9 U.S.C. Sections 1-14),or any applicable State arbitration statute, including,but not limited
to,the Texas General Arbitration Act,provided that in the event that the Grantor is subjected to an
arbitration proceeding notwithstanding this provision. Contractor consents to be joined in the
arbitration proceeding if Contractor's presence is required or requested by the Grantor of complete
relief to be recorded in the arbitration proceeding.
9. This Possession and Use Agreement represents the entire and integrated agreement
between the Grantor and Contractor in regard to the subject matter hereof and supersedes all prior
negotiations, representations,or agreements,whether written or oral, on the subject matter hereof.
This Possession and Use Agreement may only be amended by written instrument approved and
executed by both of the parties. The Grantor and Contractor accept and agree to these terms.
10. Contractor may not sell, assign_ transfer, grant, or coney all or part interest in this
Possession and Use Agreement to another party or parties without the prior express written
approval of the City Manager of such sale or assignment.The Grantor may require any records or
financial statements necessary in its opinion to ensure such sale or assignment will be in the best
interest of the Grantor.
11. All parties agree that should any provision of this Possession and Use Agreement
be determined to be invalid or unenforceable, such determination shall not affect any other term
of this Possession and Use Agreement, which shall continue in full force and effect.
12. In the event of any ambiguity in any of the terms of this Possession and Use
Agreement; it shall not be construed for or against any party,hereto on the basis that such party did
or did not author the same.
13. The officers executing this Agreement on behalf of the parties hereby represent that
such officers have full authority to execute this Possession and Use Agreement and to bind the
party he/she represents.
14. Other conditions:None.
To have and to hold the Possession and Use Agreement herein described and conveyed, together
with all the rights and appurtenances belonging to Contractor of Texas and its assigns forever, for
the purposes and subject to the limitations set forth above.
IN WITNESS WHEREOF, the parties have executed or caused this Possession and Use
Agreement to be executed as of this_day of , 2024.
GRANTOR: CONTRACTOR:
CITY OF BAYTOWN Specialty Construction TX, LLC
a home-rule municipality located in a Texas limited liability company
Harris and Chamber Counties,Texas
By: By:
JASON E. REYNOLDS, City Manager Saiwan Toumajian Owner
ATTEST:
ANGELA JACKSON, City Clerk
APPROVED AS TO FORM:
SCOTT LEMOND, City Attorney
STATE OF TEXAS §
COUNTY OF §
Before me on this day personally appeared n . in his capacit} as TAX a- "V. t
on behalf of such Specialty Construction TX. LLC.
LJ kno«m to me;
I _I proved to me on the oath of or
proved to me through hi.• ie�,zurrent Mk ivry
'description of identification card or other document issued by the federal
government or any state government that contains the photograph and
signature of the acknowledging person;
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me
that he executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this 101 , day of
2024.
CHERYL D ShwQM5
+ notary ID 0 128 180036
Notary Pu i- in and for the State o('Texas my commission Expires
't os April 6. 2026
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