Ordinance No. 12,560ORDINANCE NO. 12,560
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO
ATTEST TO A COST -SHARE AGREEMENT WITH CHAMBERS COUNTY FOR
THE REALIGNMENT OF STATE HIGHWAY 146 AND THE EASTBOUND
FEEDER ROAD OF INTERSTATE 10; AUTHORIZING PAYMENT IN AN
AMOUNT NOT TO EXCEED FIFTY THOUSAND AND NO /100 DOLLARS
($50,000.00); MAKING OTHER PROVISIONS RELATED THERETO;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 the City
Manager to execute and the City Clerk to attest to a Cost -Share Agreement with Chambers County for the
realignment of State Highway 146 and the eastbound feeder road of Interstate 10. A copy of said
agreement is attached hereto as Exhibit "A," and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment in an amount
not to exceed FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) in accordance with the
agreement authorized pursuant to Section 1.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO /100 DOLLARS
($50,000.00) or less, provided that the amount stated in Section 2 hereof may not be increased by more
than twenty-five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent
of Efrain Garcia to such decrease unless otherwise provided for in the contract authorized in Section 1
hereinabove.
Section 4: 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 v of the City of
Baytown this the 12`h day of June, 2014.
V
DAVID MC4KARTNEY,
LETICIA BRYSCH, Ci le
1 � �
APPROVED AS TO FORM: �' +4 '
OF
RAMIREZ, SR.JC)ty Attorney
RAaren \Files \City CounciFordinances\2014Uune 12�l costShareAgreemen twithChambersCounty.doc
Exhibit "A"
COST -SHARE AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
WHEREAS, this Cost -Share Agreement (this "Agreement "), dated June _, 2014, is made
between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties,
Texas (the "City") and CHAMBERS COUNTY, a political subdivision of the State of Texas (the
"County").
RECITALS:
WHEREAS, the City and the County desire to realign a portion of the intersection of State
Highway 146 and the eastbound feeder road of Interstate 10 (the "Project "); and
WHEREAS, the City and the County desire to share the costs of such improvements up to a
maximum of FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) each under terms and
conditions stated herein;
NOW THEREFORE, in consideration of the mutual covenants, agreement and benefits to both
parties, it is agreed as follows:
I.
COUNTY RESPONSIBILITIES
1.01 Responsibility for Costs. The County shall be responsible for the payment of one -half of the
construction costs of the Project up to a maximum amount of FIFTY THOUSAND AND NO/ 100
DOLLARS ($50,000.00), unless otherwise agreed in writing. The County shall remit its payment
to the City prior to the City's letting the construction contract for the Project. In the event it is
determined that the funding provided by the County is less than one -half of the costs associated
with the construction of the Project, the County may:
(a) provide such additional funding as necessary to cover the entire amount of the additional
costs, whereby the Project will continue;
(b) provide one -half of the additional funding and request the City to do the same, whereby if
both parties provide the additional funding, the Project will continue; or
(c) choose not to provide such additional funding, whereby the City may decide, in its sole
discretion, whether to proceed with the Project.
All payments made by the County pursuant to this Agreement shall be made out of the County's
current revenues.
1.02 Desi n. The Project shall be designed by a professional engineer licensed in the State of Texas at
no cost to the County.
1.03 Audit. The County and its authorized representatives shall have the right to review and audit all
books, records, vouchers and documents of whatever nature related to the City's performance
under this Agreement during the period of performance of this Agreement and for three (3) years
thereafter.
Cost -Share Agreement, Page 1
II.
CITY'S RESPONSIBILITIES
2.01 TxDOT Agreement. The City shall endeavor to enter into an Advanced Funding Agreement with
the State of Texas, by and through the Texas Department of Transportation, (the "State ") for the
construction of the Project.
2.02 Design. The Project shall be designed by a professional engineer licensed in the State of Texas at
no cost to the City and shall be submitted to the State for approval.
2.03 Construction. Pursuant to such agreement, the City will through competitive means hire a
contractor to construct the Project. The contractor shall be required to:
(a) construct the Project in accordance with the State - approved plans and specifications
resulting from the design referenced in Sections 1.02 and 2.02 of this Agreement;
(b) provide and furnish, or cause to be provided and furnished, all materials and services as
and when required in connection with the construction of the Project;
(c) obtain all necessary permits and approvals from all other governmental entities having
jurisdiction;
(d) provide supervision and inspection services for all phases of construction of the Project to
ensure that the Project is in accordance with the approved plans and specifications; and
The City shall pay for the costs associated with the construction of the Project, subject to the
obligation of the County to advance funds to the City for such purpose as provided in Section
1.01.
2.04 Progress of Work. Upon request, the City shall update the County regarding the status of the
construction of the Project.
2.05 Responsibility for Costs. The City shall be responsible for the payment of one -half of the
construction costs of the Project up to a maximum amount of FIFTY THOUSAND AND NO/ 100
DOLLARS ($50,000.00), unless otherwise agreed in writing. In the event it is determined that
the funding provided by the County is less than one -half of the costs associated with the
construction of the Project, the City may exercise the options specified in Section 1.01 of this
Agreement. All payments made by the City pursuant to this Agreement shall be made out of the
City's current revenues.
2.06 Refund Excess Funds. If the amount tendered pursuant to Section 1.01 exceeds the costs to the
City for the Project, such excess amount shall be refunded to the County within 30 days after
completion of the Project or termination of the Project and this Agreement.
Cost -Share Agreement, Page 2
III.
TERM AND TERMINATION
3.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement shall
continue in force and effect from the Effective Date until the final completion of the Project and
acceptance thereof by the TxDOT.
3.02 Force Majeure. If force majeure prevents either Party hereto from performing any of its
obligations under this Agreement, in whole or in part, then the obligations of such party, to the
extent affected by such force majeure, shall be suspended during the continuance of any inability
so long as such party is exercising due diligence to resume performance at the earliest practicable
time. As soon as reasonably possible after occurrence of the force majeure relied upon, the Party
whose contractual obligations are affected thereby shall give notice and full particulars of such
force majeure to the other party. The term "Force Majeure," as used herein, shall include, without
limitation of the generality thereof, acts of God, strikes, lockouts, or other industrial disturbances,
acts of the public enemy, orders of any kind of the government of the United States or the State of
Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to machinery,
pipelines or canals, partial or entire failure of water supply, and any other inabilities of either
Party, whether similar to those enumerated or otherwise, which are not within the control of the
party claiming such inability, and which such party could not have avoided by the exercise of due
diligence and care.
3.03 Termination. This Agreement may be terminated
(a) By the City in the event that the construction costs exceed ONE HUNDRED
THOUSAND AND NO /100 DOLLARS ($100,000.00) and neither the City nor the
County provides the excess funds needed;
(b) By mutual written agreement and consent of both parties;
(c) By the City if the City is unable to obtain the State's approval of the Project's design or
to enter into an agreement with the State on terms and conditions acceptable to the City.
The termination of this Agreement shall extinguish all rights, duties, obligations and liabilities of
the parties under this Agreement, except each party shall be responsible for one -half of the funds
expended in furtherance of the construction of the Project.
IV.
GENERAL PROVISIONS
4.01 Release.
(a) By this Agreement, the City does not consent to litigation and expressly revokes any
consent to litigation that it may have granted by the terms of this Agreement, any charter,
or applicable state law. The County hereby releases, relinquishes, and discharges the
City, 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
Cost -Share Agreement, Page 3
be caused by, arising out of, or in connection with the Project. This release includes the
cost of defense of any claim and any loss of or damage to property (whether property of
the parties or of third parties) that is caused by or alleged to be caused by, arising out of,
or in connection with the Project whether or not said claims, demands, and causes of
action are covered in whole or in part by insurance.
(b) By this Agreement, the County does not consent to litigation and expressly revokes any
consent to litigation that it may have granted by the terms of this Agreement, any charter,
or applicable state law. The City hereby releases, relinquishes, and discharges the
County, 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 the Project. This release
includes the cost of defense of any claim and any loss of or damage to property (whether
property of the parties or of third parties) that is caused by or alleged to be caused by,
arising out of, or in connection with the Project whether or not said claims, demands, and
causes of action are covered in whole or in part by insurance.
4.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City
and the County hereby agree that no claim or dispute between the City and the County arising out
of or relating to this 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 City is subjected to an arbitration proceeding
notwithstanding this provision, the County consents to be joined in the arbitration proceeding if
the County's presence is required or requested by the City for complete relief to be recorded in the
arbitration proceeding.
4.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or waive the
sovereign immunity of the City or the County.
4.04 Notice. Any notice permitted or required to be given in this Agreement to the County shall be
given by registered or certified United States Mail, postage paid, return receipt requested and
addressed to Chambers County, Attention: County Judge, P.O. Box 939, Anahuac, Texas 77514.
Any notice permitted or required to be given in this Agreement to the City shall be given by
registered or certified United States Mail, postage prepaid, return receipt requested, addressed to
City of Baytown, Attention: City Manager, P.O. Box 424, Baytown, Texas 77522 -0424. All
notices hereunder given shall be deemed validly given when actually received or, if earlier, on the
third day following deposit in a United States Postal Service post office or receptacle if the notice
otherwise complies with all of the requisites of this article.
4.05 Independent Contractor. The relationship between the County and the City shall be that of an
independent contractor.
4.06 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto
and shall not be construed to confer any rights upon any third party. Neither the City nor the
County shall ever be subject to any liability in damages to the other party's customers or
contractors for any failure to perform its obligations under this Agreement.
Cost -Share Agreement, Page 4
4.07 AARnlication of Laws. All terms, conditions, and provisions of this Agreement are subject to all
applicable federal, state and local laws and regulations, and all judicial determinations relative
thereto.
4.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
4.09 Choice of Law, Venue. This Agreement shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created hereunder are performable in
Harris County, Texas.
4.10 Severability. In case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision thereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
4.11 Non - Waiver. Failure of either party hereto to insist on the strict performance of any of the
agreements herein or to exercise any rights or remedies accruing thereunder upon default or
failure of performance shall not be considered a waiver of the right to insist on and to enforce, by
an appropriate remedy, strict compliance with any other obligation hereunder or to exercise any
right or remedy occurring as a result of any future default or failure of performance.
4.12 Interpretation. In the event of any ambiguity in any of the terms of this contract, it shall not be
construed for or against any party hereto on the basis that such party did or did not author the
same.
4.13 Captions. The captions appearing at the first of each numbered section in this Agreement are
inserted and included solely for convenience and shall never be considered or given any effect in
construing this Agreement or any provision hereof, or in connection with the duties, obligations
or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent
should arise.
4.14 Complete Agreement. This Agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings of written or oral agreements between the parties
with respect to the subject matter herein.
4.15 Modification. No amendment modification or alteration of the terms hereof shall be binding
unless the same be in writing, dated subsequent to the date hereof and duly executed by the
parties hereto.
4.16 Assi ng ment. Neither party to this Agreement may assign their rights, duties or interests without
first obtaining the written consent of the other party.
4.17 Authority. Each party has the full power and authority to enter into and perform this Agreement,
and the person signing this Agreement on behalf of each party has been properly authorized and
empowered to enter into this Agreement. The persons executing this Agreement hereby represent
that they have authorization to sign on behalf of their respective corporations and/or business
entities.
4.18 Agreement Read. The parties acknowledge that they have read, understand and intend to be
bound by the terms and conditions of this Agreement.
Cost -Share Agreement, Page 5
4.19 Multiple Originals. It is understood and agreed that this Agreement may be executed in a number
of identical counterparts each of which shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the undersigned parties hereto execute this Agreement on this
day of , 2014 (the "Effective Date ").
CHAMBERS COUNTY
Jimmy Sylvia, Chambers County Judge
ATTEST:
Heather H. Hawthorne, Chambers County Clerk
R: \Karen \Files \Contracts�Chambers County Cost Share \CostShareAgreement.docx
Cost -Share Agreement, Page 6
CITY OF BAYTOWN, TEXAS
Stephen H. DonCarlos, Mayor
ATTEST:
Leticia Brysch, City Clerk