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Ordinance No. 12,572ORDINANCE NO. 12,572 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 TRAFFIC SIGNAL AND MITIGATION AGREEMENT WITH TRAAZ PROPERTIES, LLC, AND BCHPW DEVELOPMENT LP; 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. ****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** 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 Traffic Signal and Mitigation Agreement with Traaz Properties, LLC, and BCHPW Development LP, for the construction of a traffic signal at Emmett O. Hutto Blvd and Rollingbrook Drive and construction of a street to connect Emmett O. Hutto Boulevard from the southwest property corner of Bongo gas station to the nearest public street. 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 in Section 1 hereof. 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 City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative Baytown this the 26t1i day of June, 2014. ATT ST: »•�1 S N YZ t O L T1CIA BRYSCH, tg± lerk : c� APPROVED AS TO FO Xy C1 ACIO RAMIREZ, SR., City ktortky RAKarenTiles\City CouncihOrdinances\2014Vune 261TrafficSignal &MitigationAgreement.doc and after its passage by the if the City Council of the City of H. DONCARLOS, Mayor Exhibit "A" TRAFFIC SIGNAL AND MITIGATION AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § This Traffic Signal and Mitigation Agreement (the "Agreement") is made and entered into between and among the CITY OF BAYTOWN, a municipal corporation located in Hams and Chambers Counties, Texas (the "CITY "), and BCHPW Development, LP, a Texas limited partnership, (`BCHPW ") and Traaz Properties, LLC, a Texas limited liability company ( "TRAAZ "). TRAAZ and BCHPW shall be collectively referred to herein as "DEVELOPERS" or singularly referred to herein as "Developer." WITNESSETH WHEREAS, BCHPW owns that property more particularly described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Property"); and WHEREAS, TRAAZ owns that property more particularly described in Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes (the "Property"); and WHEREAS, BCHPW desires to develop the Property as Section 1 and Section 2 of Rollingbrook Estates; and WHEREAS, as part of such development, BCHPW must meet certain mitigation requirements for the proposed fill in the floodplain; and WHEREAS, the CITY owns the land behind the animal control facility at 705 N. Robert Lanier, Baytown, Harris County, Texas, on which a detention basin is located (the "Detention Basin "); and WHEREAS, BCHPW desires to expand the detention facility for its construction of Rollingbrook Estates; and WHEREAS, the CITY is amenable to allowing BCHPW to expand and use the CITY's detention facility to satisfy its mitigation requirements upon the terns and conditions stated herein; and WHEREAS, the DEVELOPERS desire for the City to construct a traffic signal at Emmett 0. Hutto Boulevard and Rollingbrook Drive; and WHEREAS, the City is amenable to doing so based upon the terms and conditions herein; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the DEVELOPERS agree as follows: Tm( is Signal and Mitigation Aereement. Page 1 I. DEVELOPER'S OBLIGATIONS. Except as otherwise specified, all of the obligations of the DEVELOPERS in this Agreement shall be the joint and several obligations and liabilities of BCHPW Development, LP, a Texas limited partnership, and Traaz Properties, LLC. In addition to DEVELOPERS' obligations elsewhere in this Agreement, DEVELOPERS shall have the following obligations: 1.01 Construction of Street. BCHPW agrees that it will, at its own cost and expense, construct a street meeting all applicable requirements of the Code of Ordinances of the CITY to connect Emmett O. Hutto Boulevard from the southwest property corner of the Bongo gas station to the nearest public street in Rollingbrook Estates, as further detailed in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes (the "Street"). Prior to the commencement of any construction associated with the Street, BCHPW shall submit plans and specifications to the CITY's Director of Engineering for review and approval. Once BCHPW has obtained such approval, BCHPW will commence the construction of the Street in accordance with the approved plans and specifications. BCHPW shall continue such construction efforts thereafter in a diligent manner until the Street is completed and accepted by the CITY. BCHPW agrees that, prior to submitting a final plat for Section 2 of Rollingbrook Estates, BCHPW shall complete the construction of the Street, which shall mean that the Street is constructed in accordance with all applicable regulations as well as the plans and specifications approved by the CITY and is accepted by the CITY as being complete. 1.02 Expansion of Detention Basin. BCHPW agrees that in expanding the Detention Basin as authorized by the CITY in Section 2.01 hereinbelow, it will at its own cost and expense bring the Detention Basin up to the CITY's standards for the same and obtain the CITY'S approval of the plans and specifications prior to the excavation of the Detention Basin. BCHPW will remove a portion of the fence during excavation and expand the fence line and relocate the same to a location approved by the CITY's Director of Engineering. BCHPW shall also replace any fencing that is currently damaged. The design of the mitigation area must provide approximately 50 feet of access all the way to the north property line of the Detention Basin. At all times while performing any work required in this subsection, BCHPW shall access the Detention Basin only through such 50' access area. 1.03 Contribution toward Traffic Signal. a. Initial Deposit. The DEVELOPERS agree that within thirty (30) days of receiving an invoice therefor, the DEVELOPERS shall deposit in cash the amount of the engineer's estimate of the installation of a traffic signal at Emmett O. Hutto Boulevard and Rollingbrook Drive (the "Traffic Signal Project "), which estimate is THIRTY THOUSAND AND NO 1100 DOLLARS ($30,000.00). The Parties understand and agree that this amount is merely a deposit which is subject to adjustment in accordance with subsections b and c once bid prices have been received and once the Traffic Signal Project is complete and accepted by the City. b. Adjustment before Award. If the amount deposited with the CITY pursuant to Section 1.03.a is less than one hundred ten percent (110 %) of the bid of the lowest responsible bidder for the Traffic Signal Project, DEVELOPERS shall tender to the CITY the difference between one hundred ten percent (110 %) of such bid and the deposit within ten (10) days of receipt of an invoice therefor from the CITY. If the total amount tendered to the City is more than one hundred ten percent (110 %) of the bid received, the CITY shall refund such excess funds within thirty Tra[iic Signal and Mitigation Agreement. Page 2 (30) days after the completion and acceptance of the Traffic Signal Project by the CITY. The parties understand and agree that no contract will be let until DEVELOPERS have deposited the monies required herein with the CITY. C. Adjustment for Change Orders. If during the construction of the Traffic Signal Project, a change to the plans or specifications is necessary or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment or supplies to be furnished, the CITY may approve a change order for any increased costs. The DEVELOPERS shall be required to pay the cost of any such increase, which payment will be due within ten (10) days of receipt of an invoice therefor from the CITY. If, at the time of the change order, the total amount tendered to the City is more than the sum of the bid received and the increased costs due to the change order, the CITY shall refund such excess funds within thirty (30) days after the completion and acceptance of the Traffic Signal Project by the CITY. d. All amounts due from DEVELOPERS pursuant to section 1.03 shall be born one- half (' /:) from each Developer. 1.04 Responsible for Damages to Property. At its own cost and expense, BCHPW shall be responsible for the repair or replace any damage or injury done to any portion of the CITY'S property caused by BCHPW, its contractor, officers, agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown (the "City Manager") in his sole discretion, determines that any portion of the Detention Basin or the Street Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify BCHPW in writing and require BCHPW to perform the identified work forthwith and continue diligently therewith until completion. If more than ten days (10) are required to complete the repair or replacement, then the CITY may, at its option, extend such period. If the condition persists after the expiration of ten (10) days from the date of the notice or, if applicable, from the expiration of any extension granted, the City Manager may declare BCHPW in default and terminate this Agreement as it relates to the detention basin and the street and seek any other appropriate remedy which may be available to the CITY, including, but not limited to, making such repairs or replacements at BCHPW's sole cost and expense. It is understood if such repairs or replacements are made by the CITY, BCHPW agrees to pay the cost thereof to the CITY on demand. 1.05 Insurance. At all times while on the CITY's property, BCHPW or any contractor performing any work under this Agreement, if BCHPW is not performing such work, at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from such entity's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by BCHPW, its contractor, agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance coverage required herein shall be primary insurance with respect to the CITY and its officers, agents and employees. Any insurance or self - insurance maintained by the CITY, its officers, agents and employees shall be considered in excess of such insurance and shall not contribute to it. Further, BCHPW or any contractor performing any work under this Agreement, if BCHPW is not performing such work, shall include all subcontractors as additional insureds under its policies or shall furnish separate Traffic Signal and Mitigation Agreement. Page 3 certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: (1) Workers' Compensation Policy • Statutory amounts required by Texas law. • Employer's Liability: $500,000 (2) Commercial General Liability Policy ■ General aggregate of $2,000,000 ■ Owners' and Contractors' Protective Liability of $500,000 ■Products and Completed Operations of $1,000,000 • Personal and Advertising Injury of $1,000,000 • Minimum of $500,000 per occurrence • Coverage shall be at least as broad as ISO CG 00 02 12 07. • No coverage exclusions shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. (3) Automobile Liability Policy • Combined single limits of $1,000,000 • Coverage for "Any Auto." Prior to or upon the execution of this Agreement and before commencing any of the work, BCHPW shall file with the CITY valid Certificates of Insurance and endorsements acceptable to the CITY. Such Certificates shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the CITY via certified mail, return receipt requested. Prior to the end of each coverage period during the term of this Agreement, new Certificates of Insurance must be filed with the CITY evidencing continuation of coverage. The following are general requirements, which are applicable to all policies: (1) All insurance coverage required herein, except for Workers' Compensation Insurance, shall be written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best Key Rating Guide. (2) Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. (3) Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis. (4) Claims -made policies will not be accepted. (5) The CITY, its officials, employees and agents are to be added as "Additional Insureds" to all liability policies. The coverage shall contain no special limitation on the scope of protection afforded to the CITY, its officials, employees or agents. (6) A waiver of subrogation in favor of the CITY with respect to Workers' Compensation Insurance must be included. (7) Upon request, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the CITY at no cost to the CITY. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent, and shall contain the following provisions and warranties: Traffic Signal and Mitigation Agreement. Page 4 (1) All endorsements and insurance coverages according to requirements and instructions contained herein. (2) The form of the notice of cancellation, termination, or change in coverage provisions to the CITY'S REPRESENTATIVE. (3) Original endorsements affecting coverage required herein shall be furnished with the certificates of insurance. (4) Upon request of and without cost to the CITY or the CITY'S REPRESENTATIVE, insurance policies shall be furnished to CITY. (5) Upon request of and without cost to the CITY, loss runs (Claims listing) of any and/or all insurance coverages shall be furnished to CITY. 1.06 Bond. Prior to the execution of this Agreement by the City, BCHPW shall provide, at its own cost and expense, the City with a restoration bond in such form and with such sureties as the City may approve (the "Bond ") in the amount of ONE HUNDRED SEVENTY THOUSAND AND N01100 DOLLARS ($170,000.00), the purpose of which is to ensure payment of the expenses associated with any damage to the City's property should BCHPW fail to fully perform all obligations expressed herein in accordance with the terms and conditions of this Agreement. The Bond shall remain in effect throughout the term of this Agreement and for a period of one (1) year thereafter. If at any time the Bond becomes invalid or ineffective for any reason, BCHPW shall promptly supply within ten (10) calendar days such other bond, which shall assure restoration as required. Such replacement bond shall be issued in a form and by a surety acceptable to the City. In the event the City Manager determines that any restoration work is not complete in accordance with this Agreement, the City shall notify the surety in writing and direct the surety to complete the work. If the surety, within seven (7) calendar days after the notice demanding completion is sent, fails to commence the completion and diligent prosecution of the work in compliance with this Agreement, then a. the City may either (i) perform such work or (ii) cause the same to be performed and b. BCHPW and/or its surety, within seven (7) calendar days of receipt of an invoice therefor from the City, shall pay the amount of invoice for the City's cost of the work. Should the City's costs to perform the restoration work exceed the amount of the Bond, the City shall have the right to pursue all legal remedies as provided by law. This section shall survive termination or expiration of this Agreement. 1.07 Indemnity. BCHPW AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, 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 ATTORNEYS' FEES, FOR DAMAGE TO ANY PROPERTY, LOSS OF REVENUE, OR ANY OTHER INJURIES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED BY BCHPW PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF BCHPW'S ACTIVITIES, OR FROM ANY ACT OR OMISSION BY BCHPW, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR INJURIES ARE CAUSED BY (I) THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR Traffic Signal and Mitigation Agmemeft Page 5 ENTITY OR (II) THE JOINT OR SOLE NEGLIGENCE OF BCHPW. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH BCHPW AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY BCHPW TO INDEMNIFY AND PROTECT THE CITY FROM (n THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND /OR (II) THE CONSEQUENCES OF BCHPW'S SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. In the event that any action or proceeding is brought against the CITY by reason of any matter from which the CITY is indemnified herein, BCHPW further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the CITY. This article shall survive the expiration or termination of this Agreement. Il. CITY'S OBLIGATIONS. In addition to the CITY's obligations elsewhere in this Agreement, the CITY shall have the following obligations: 2.01 Grant of License. The CITY hereby grants to BCHPW for BCHPW'S nonexclusive use certain portions of the Property. BCHPW may use the Property only for the purpose of (i) bringing the Detention Basin up to the CITY's standards, and (ii) expanding the same as authorized by the CITY in Section 1.02 hereinabove, including relocating the fence thereon, and (iii) contributing run -off for stormwater management to the Detention Basin in an amount not to exceed a capacity of 21.254 ac -ft. The work on the Detention Basin and the expansion of the same must be completed and accepted by the CITY prior to BCHPW's submitting a final plat for any section of Rollingbrook Estates. 2.02 Installation of Traffic Signal. The CITY shall cause to have designed and installed a traffic signal at the intersection of Emmett 0. Hutto Boulevard and Rollingbrook Drive after the DEVELOPERS have paid their share of the same as detailed in Section 1.03 hereinabove. Specifically, the CITY will award the construction of the traffic signal project to the lowest responsible bidder. Thereafter, the CITY's contractor will begin the construction of the traffic signal project in accordance with City- approved plans and specifications and continue such construction efforts thereafter in a diligent manner until the Project is completed and accepted by the CITY; provided the DEVELOPERS have paid any required adjustment to the project costs in accordance with Section 1.03 hereinabove. The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and the DEVELOPERS shall have no claim thereto. As such, the DEVELOPERS shall have no right or privilege to remove or interfere with any part or portion of the Project during or after construction. Traffic Signal and Mitigation Aueement. Page 6 2.03 Desiian of Traffic Signal. The City is responsible for all costs associated of the design of the signal referenced in Section 2.02. 2.04 Partial Reimbursement of ExxonMobil Inspection Fees. Within thirty (30) days after (i) acceptance of the Street by the City, (ii) satisfactory proof of BCHPW's payment of pipeline inspection fees to Exxon Mobil Corporation ( "ExxonMobil "), and (iii) the City's receipt of an invoice from BCHPW, the City agrees to pay BCHPW one -half of the cost charged by ExxonMobil to inspect ExxonMobil's pipelines in the pipeline corridor over which the Street will cross up to a maximum amount of FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00). The Parties expressly understand and agree that the maximum amount for which the City will be liable under this Agreement for reimbursement to BCHPW shall be FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00). III. 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 (as hereafter defined) until the DEVELOERS have performed all of their obligations hereunder. IV. 4.01 Non - Waiver. Failure of the CITY to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 4.02 Default by DEVELOPER. The CITY shall have the right to declare the DEVELOPERS in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if either DEVELOPER: (a) Defaults in the timely performance of any obligation imposed upon the DEVELOPER hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given the DEVELOPERS or, if the CITY Manager in his sole discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if the DEVELOPERS do not commence curative work within the fifteen (15) day period and prosecute the work to completion with diligence; (b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment of this Agreement without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the CITY will be relieved of its obligations hereunder and shall be entitled to seek all other relief which may be allowed by law against the breaching party. Any and all defaults declared by the CITY shall be final and binding upon DEVELOPER. Traffic Signal and Miti ate ion Agreement. Page 7 4.03 Remedies Cumulative. All rights and remedies of the CITY and/or DEVELOPERS under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.04 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 4.05 Release. By this Agreement, the CITY does not consent to litigation or suit, and the CITY 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 contained herein shall be construed in any way so as to waive in whole or part the CITY's sovereign immunity. DEVELOPERS assume full responsibility for their respective obligations under this Agreement performed hereunder and hereby release, relinquish, discharge, and hold harmless 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 be caused by, arising out of, or in connection with BCHPW's work to be performed hereunder. This release shall apply with respect to BCHPW's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.06 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and DEVELOPERS hereby agree that no claim or dispute between the CITY and DEVELOPERS 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, DEVELOPERS consent to be joined in the arbitration proceeding if DEVELOPERS' presence is required or requested by the CITY for complete relief to be recorded in the arbitration proceeding. 4.07 AssigLiment. DEVELOPERS shall not assign this Agreement without first obtaining the written consent of the CITY. 4.08 Notice. Any notice required to be given'under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand- delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Traffic Signal and Mitigation Agreement. Page 8 DEVELOPER BCHPW Development, LP Attn: Richard Cansler 3425 Federal Street Pasadena, TX 77504 and Trazz Properties, LLC Attn: TRAZ Momin 3103 Mossy Elm Ct Houston, TX 77059 -3227 4.09 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and DEVELOPERS and their respective successors and assigns. 4.10 Application of Laws. All terns, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.12 Am i 'ties. In the event of any ambiguity in any of the terms of this 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. 4.13 Complete AUNmen t. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 4.14 Duplicate 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. 4.15 Hem. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 4.16 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 4.17 Severabilitv. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. n Agreement. Page 9 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. 4.19 Authori . The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. EXECUTED ON this the _ day of .20 (the "Effective Date "). CITY OF BAYTOWN By: ROBERT D. LEIPER, City Manager ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney EXECUTED ON this the ?6day of - 11 N,—c= , 20 %T. BCHPW DEVELOPMENT, LP. By and through its General Partner ROLLINGBROOK INVESTMENTS, LLC (Signature) (Printed Name) (Title) TnfFic Signal and Mitigation Agreement. Page 10 EXECUTED ON this the _ day of , 20_ TRAAZ PROPERTIES, LLC. By: (Signature) (Printed Name) (Title) STATE OF TEXAS Before me, � -AA /c% �'C' e I-ko {/c�d,P,�the undersigned notary public, on this day personally appeared RAG ! : ae d e',, rr t j e o , the 112a" • " o C4 2 _, of ROLLINGBROOK INVESTMENTS, LLC, the General Partner of BCHPW Development, LP, on behalf of such partnership, ✓ known to me; proved to me on the oath of ; or proved to me through his/her current (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 /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and office this InZ(� da Hof , 20Lq o`eTru "�, GERALDINE ANN HENRY A.�'' �`^ q Notary Public, State of as es �- My Commission Expires No Public in and for the State of >•1;;tE;.� September 26, 2015 tay Texas My commission expires: STATE OF TEXAS COUNTY OF Before me, , the undersigned notary public, on this day personally appeared the of Traaz Properties, LLC, on behalf of such limited liability company, known to me; proved to me on the oath of ; or EXECUTED ON this the STATE OF TEXAS COUNTY OF day of , 20_ TRAAZ PROPERTIES, LLC. By: (Signature) —� Z. %vj O (PrInte'd /Name) Fk.,-sjJe- (Title) Before me, , the undersigned notary public, on this day personally appeared , the , of ROLLINGBROOK INVESTMENTS, LLC, the General Partner of BCHPW Development, LP, on behalf of such partnership, known to me; proved to me on the oath of ; or proved to me through his /her current {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 /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of , 20_. Notary Public in and for the State of Texas My commission expires: STATE OF TEXAS § COUNTY OF �� 5' § Before me, 39RI M& d 1J , the undersigned notary public, on this day personally appeared C , the of Traaz Properties, LLC, on behalf of such limited liability company, known to me; proved to me on the oath of ; or 'rrallic Signal and Mitigation Agreement, Page 11 V proved to me through his /her current TX MUC S UCW6F {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 /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this � day ��f L , 20 " "0'1 PN.!- CHRISTINE SANDLIN Notary Public in and for he State of Notary Public, State of Texas Texas My Commission Expires November 08. 2014 My commission expires: R:\Karen \Pdes':Contracts,BCHPW Development\Agreement02202014 doe Traffic Signal and Mitigation Agreement, Page 12 I'M it E, Yii sit 14 E E E4 jn OR Eta 0- �6 co 5.3 x IV Lu S", Q 75* N4 V vs..o,00• w 560 'Gig t YE it! T! ";got -v 4M 4-1 ;lip �,!' -.'k : 65 wgii'M op qh no TRAFFIC SIGNAL AND MITIGATION AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § This Traffic Signal and Mitigation Agreement (the "Agreement ") is made and entered into between and among the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas (the "CITY "), and BCHPW Development, LP, a Texas limited partnership, ( "BCHPW ") and Traaz Properties, LLC, a Texas limited liability company ( "TRAAZ "). TRAAAZ and BCHPW shall be collectively referred to herein as "DEVELOPERS" or singularly referred to herein as "Developer." WITNESSETH WHEREAS, BCHPW owns that property more particularly described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Property "); and WHEREAS, TRAAZ owns that property more particularly described in Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes (the "Property "); and WHEREAS, BCHPW desires to develop the Property as Section 1 and Section 2 of Rollingbrook Estates; and WHEREAS, as part of such development, BCHPW must meet certain mitigation requirements for the proposed fill in the floodplain; and WHEREAS, the CITY owns the land behind the animal control facility at 705 N. Robert Lanier, Baytown, Harris County, Texas, on which a detention basin is located (the "Detention Basin "); and WHEREAS, BCHPW desires to expand the detention facility for its construction of Rollingbrook Estates; and WHEREAS, the CITY is amenable to allowing BCHPW to expand and use the CITY's detention facility to satisfy its mitigation requirements upon the terms and conditions stated herein; and WHEREAS, the DEVELOPERS desire for the City to construct a traffic signal at Emmett O. Hutto Boulevard and Rollingbrook Drive; and WHEREAS, the City is amenable to doing so based upon the terms and conditions herein; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the DEVELOPERS agree as follows: Traffic Signal and Mitigation Agreement, Page 1 I. DEVELOPER'S OBLIGATIONS. Except as otherwise specified, all of the obligations of the DEVELOPERS in this Agreement shall be the joint and several obligations and liabilities of BCHPW Development, LP, a Texas limited partnership, and Traaz Properties, LLC. In addition to DEVELOPERS' obligations elsewhere in this Agreement, DEVELOPERS shall have the following obligations: 1.01 Construction of Street. BCHPW agrees that it will, at its own cost and expense, construct a street meeting all applicable requirements of the Code of Ordinances of the CITY to connect Emmett O. Hutto Boulevard from the southwest property corner of the Bongo gas station to the nearest public street in Rollingbrook Estates, as further detailed in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes (the "Street "). Prior to the commencement of any construction associated with the Street, BCHPW shall submit plans and specifications to the CITY's Director of Engineering for review and approval. Once BCHPW has obtained such approval, BCHPW will commence the construction of the Street in accordance with the approved plans and specifications. BCHPW shall continue such construction efforts thereafter in a diligent manner until the Street is completed and accepted by the CITY. BCHPW agrees that, prior to submitting a final plat for Section 2 of Rollingbrook Estates, BCHPW shall complete the construction of the Street, which shall mean that the Street is constructed in accordance with all applicable regulations as well as the plans and specifications approved by the CITY and is accepted by the CITY as being complete. 1.02 Expansion of Detention Basin. BCHPW agrees that in expanding the Detention Basin as authorized by the CITY in Section 2.01 hereinbelow, it will at its own cost and expense bring the Detention Basin up to the CITY's standards for the same and obtain the CITY'S approval of the plans and specifications prior to the excavation of the Detention Basin. BCHPW will remove a portion of the fence during excavation and expand the fence line and relocate the same to a location approved by the CITY's Director of Engineering. BCHPW shall also replace any fencing that is currently damaged. The design of the mitigation area must provide approximately 50 feet of access all the way to the north property line of the Detention Basin. At all times while performing any work required in this subsection, BCHPW shall access the Detention Basin only through such 50' access area. 1.03 Contribution toward Traffic Signal. a. Initial Deposit. The DEVELOPERS agree that within thirty (30) days of receiving an invoice therefor, the DEVELOPERS shall deposit in cash the amount of the engineer's estimate of the installation of a traffic signal at Emmett O. Hutto Boulevard and Rollingbrook Drive (the "Traffic Signal Project "), which estimate is THIRTY THOUSAND AND N01100 DOLLARS ($30,000.00). The Parties understand and agree that this amount is merely a deposit which is subject to adjustment in accordance with subsections b and c once bid prices have been received and once the Traffic Signal Project is complete and accepted by the City. b. Adjustment before Award. If the amount deposited with the CITY pursuant to Section 1.03.a is less than one hundred ten percent (110 %) of the bid of the lowest responsible bidder for the Traffic Signal Project, DEVELOPERS shall tender to the CITY the difference between one hundred ten percent (110 %) of such bid and the deposit within ten (10) days of receipt of an invoice therefor from the CITY. If the total amount tendered to the City is more than one hundred ten percent (110 %) of the bid received, the CITY shall refund such excess funds within thirty Traffic Signal and Mitigation Agreement, Page 2 (30) days after the completion and acceptance of the Traffic Signal Project by the CITY. The parties understand and agree that no contract will be let until DEVELOPERS have deposited the monies required herein with the CITY. C. Adjustment for Change Orders. If during the construction of the Traffic Signal Project, a change to the plans or specifications is necessary or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment or supplies to be furnished, the CITY may approve a change order for any increased costs. The DEVELOPERS shall be required to pay the cost of any such increase, which payment will be due within ten (10) days of receipt of an invoice therefor from the CITY. If, at the time of the change order, the total amount tendered to the City is more than the sum of the bid received and the increased costs due to the change order, the CITY shall refund such excess funds within thirty (30) days after the completion and acceptance of the Traffic Signal Project by the CITY. d. All amounts due from DEVELOPERS pursuant to section 1.03 shall be born one - half (Y2) from each Developer. 1.04 Responsible for Damages to Property. At its own cost and expense, BCHPW shall be responsible for the repair or replace any damage or injury done to any portion of the CITY'S property caused by BCHPW, its contractor, officers, agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown (the "City Manager ") in his sole discretion, determines that any portion of the Detention Basin or the Street Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify BCHPW in writing and require BCHPW to perform the identified work forthwith and continue diligently therewith until completion. If more than ten days (10) are required to complete the repair or replacement, then the CITY may, at its option, extend such period. If the condition persists after the expiration of ten (10) days from the date of the notice or, if applicable, from the expiration of any extension granted, the City Manager may declare BCHPW in default and terminate this Agreement as it relates to the detention basin and the street and seek any other appropriate remedy which may be available to the CITY, including, but not limited to, making such repairs or replacements at BCHPW's sole cost and expense. It is understood if such repairs or replacements are made by the CITY, BCHPW agrees to pay the cost thereof to the CITY on demand. 1.05 Insurance. At all times while on the CITY's property, BCHPW or any contractor performing any work under this Agreement, if BCHPW is not performing such work, at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from such entity's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by BCHPW, its contractor, agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance coverage required herein shall be primary insurance with respect to the CITY and its officers, agents and employees. Any insurance or self - insurance maintained by the CITY, its officers, agents and employees shall be considered in excess of such insurance and shall not contribute to it. Further, BCHPW or any contractor performing any work under this Agreement, if BCHPW is not performing such work, shall include all subcontractors as additional insureds under its policies or shall furnish separate Traffic Signal and Mitigation Agreement, Page 3 certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: (1) Workers' Compensation Policy • Statutory amounts required by Texas law. • Employer's Liability: $500,000 (2) Commercial General Liability Policy • General aggregate of $2,000,000 • Owners' and Contractors' Protective Liability of $500,000 ■Products and Completed Operations of $1,000,000 • Personal and Advertising Injury of $1,000,000 • Minimum of $500,000 per occurrence • Coverage shall be at least as broad as ISO CG 00 02 12 07. • No coverage exclusions shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. (3) Automobile Liability Policy • Combined single limits of $1,000,000 • Coverage for "Any Auto." Prior to or upon the execution of this Agreement and before commencing any of the work, BCHPW shall file with the CITY valid Certificates of Insurance and endorsements acceptable to the CITY. Such Certificates shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the CITY via certified mail, return receipt requested. Prior to the end of each coverage period during the term of this Agreement, new Certificates of Insurance must be filed with the CITY evidencing continuation of coverage. The following are general requirements, which are applicable to all policies: (1) All insurance coverage required herein, except for Workers' Compensation Insurance, shall be written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best Key Rating Guide. (2) Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. (3) Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis. (4) Claims -made policies will not be accepted. (5) The CITY, its officials, employees and agents are to be added as "Additional Insureds" to all liability policies. The coverage shall contain no special limitation on the scope of protection afforded to the CITY, its officials, employees or agents. (6) A waiver of subrogation in favor of the CITY with respect to Workers' Compensation Insurance must be included. (7) Upon request, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the CITY at no cost to the CITY. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent, and shall contain the following provisions and warranties: Traffic Signal and Mitigation Agreement. Page 4 (1) All endorsements and insurance coverages according to requirements and instructions contained herein. (2) The form of the notice of cancellation, termination, or change in coverage provisions to the CITY'S REPRESENTATIVE. (3) Original endorsements affecting coverage required herein shall be furnished with the certificates of insurance. (4) Upon request of and without cost to the CITY or the CITY'S REPRESENTATIVE, insurance policies shall be furnished to CITY. (5) Upon request of and without cost to the CITY, loss runs (Claims listing) of any and/or all insurance coverages shall be furnished to CITY. 1.06 Bond. Prior to the execution of this Agreement by the City, BCHPW shall provide, at its own cost and expense, the City with a restoration bond in such form and with such sureties as the City may approve (the "Bond ") in the amount of ONE HUNDRED SEVENTY THOUSAND AND NO /100 DOLLARS ($170,000.00), the purpose of which is to ensure payment of the expenses associated with any damage to the City's property should BCHPW fail to fully perform all obligations expressed herein in accordance with the terms and conditions of this Agreement. The Bond shall remain in effect throughout the term of this Agreement and for a period of one (1) year thereafter. If at any time the Bond becomes invalid or ineffective for any reason, BCHPW shall promptly supply within ten (10) calendar days such other bond, which shall assure restoration as required. Such replacement bond shall be issued in a form and by a surety acceptable to the City. In the event the City Manager determines that any restoration work is not complete in accordance with this Agreement, the City shall notify the surety in writing and direct the surety to complete the work. If the surety, within seven (7) calendar days after the notice demanding completion is sent, fails to commence the completion and diligent prosecution of the work in compliance with this Agreement, then a. the City may either (i) perform such work or (ii) cause the same to be performed and b. BCHPW and/or its surety, within seven (7) calendar days of receipt of an invoice therefor from the City, shall pay the amount of invoice for the City's cost of the work. Should the City's costs to perform the restoration work exceed the amount of the Bond, the City shall have the right to pursue all legal remedies as provided by law. This section shall survive termination or expiration of this Agreement. 1.07 Indemnity. BCHPW AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, 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 ATTORNEYS' FEES, FOR DAMAGE TO ANY PROPERTY, LOSS OF REVENUE, OR ANY OTHER INJURIES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED BY BCHPW PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF BCHPW' S ACTIVITIES, OR FROM ANY ACT OR OMISSION BY BCHPW, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR INJURIES ARE CAUSED BY (I) THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR Traffic Signal and Mitigation Agreement, Page 5 ENTITY OR (II) THE JOINT OR SOLE NEGLIGENCE OF BCHPW. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH BCHPW AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY BCHPW TO INDEMNIFY AND PROTECT THE CITY FROM (I) THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND /OR (II) THE CONSEQUENCES OF BCHPW'S SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. In the event that any action or proceeding is brought against the CITY by reason of any matter from which the CITY is indemnified herein, BCHPW further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the CITY. This article shall survive the expiration or termination of this Agreement. II. CITY'S OBLIGATIONS. In addition to the CITY's obligations elsewhere in this Agreement, the CITY shall have the following obligations: 2.01 Grant of License. The CITY hereby grants to BCHPW for BCHPW'S nonexclusive use certain portions of the Property. BCHPW may use the Property only for the purpose of (i) bringing the Detention Basin up to the CITY's standards, and (ii) expanding the same as authorized by the CITY in Section 1.02 hereinabove, including relocating the fence thereon, and (iii) contributing run -off for stormwater management to the Detention Basin in an amount not to exceed a capacity of 21.254 ac -ft. The work on the Detention Basin and the expansion of the same must be completed and accepted by the CITY prior to BCHPW's submitting a final plat for any section of Rollingbrook Estates. 2.02 Installation of Traffic Signal. The CITY shall cause to have designed and installed a traffic signal at the intersection of Emmett O. Hutto Boulevard and Rollingbrook Drive after the DEVELOPERS have paid their share of the same as detailed in Section 1.03 hereinabove. Specifically, the CITY will award the construction of the traffic signal project to the lowest responsible bidder. Thereafter, the CITY's contractor will begin the construction of the traffic signal project in accordance with City- approved plans and specifications and continue such construction efforts thereafter in a diligent manner until the Project is completed and accepted by the CITY; provided the DEVELOPERS have paid any required adjustment to the project costs in accordance with Section 1.03 hereinabove. The legal title to the Project and all appurtenances related thereto shall at all times be vested in the CITY; and the DEVELOPERS shall have no claim thereto. As such, the DEVELOPERS shall have no right or privilege to remove or interfere with any part or portion of the Project during or after construction. Traffic Signal and Mitigation Agreement, Page 6 2.03 Design of Traffic Signal. The City is responsible for all costs associated of the design of the signal referenced in Section 2.02. 2.04 Partial Reimbursement of ExxonMobil Inspection Fees. Within thirty (30) days after (i) acceptance of the Street by the City, (ii) satisfactory proof of BCHPW's payment of pipeline inspection fees to Exxon Mobil Corporation ( "ExxonMobil "), and (iii) the City's receipt of an invoice from BCHPW, the City agrees to pay BCHPW one -half of the cost charged by ExxonMobil to inspect ExxonMobil's pipelines in the pipeline corridor over which the Street will cross up to a maximum amount of FIFTY THOUSAND AND NO 1100 DOLLARS ($50,000.00). The Parties expressly understand and agree that the maximum amount for which the City will be liable under this Agreement for reimbursement to BCHPW shall be FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00). III. 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 (as hereafter defined) until the DEVELOERS have performed all of their obligations hereunder. IV. 4.01 Non - Waiver. Failure of the CITY to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 4.02 Default by DEVELOPER. The CITY shall have the right to declare the DEVELOPERS in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if either DEVELOPER: (a) Defaults in the timely performance of any obligation imposed upon the DEVELOPER hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given the DEVELOPERS or, if the CITY Manager in his sole discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if the DEVELOPERS do not commence curative work within the fifteen (15) day period and prosecute the work to completion with diligence; (b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment of this Agreement without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the CITY will be relieved of its obligations hereunder and shall be entitled to seek all other relief which may be allowed by law against the breaching party. Any and all defaults declared by the CITY shall be final and binding upon DEVELOPER. Traffic Signal and Mitigation Agreement. Page 7 4.03 Remedies Cumulative. All rights and remedies of the CITY and/or DEVELOPERS under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.04 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 4.05 Release. By this Agreement, the CITY does not consent to litigation or suit, and the CITY 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 contained herein shall be construed in any way so as to waive in whole or part the CITY's sovereign immunity. DEVELOPERS assume full responsibility for their respective obligations under this Agreement performed hereunder and hereby release, relinquish, discharge, and hold harmless 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 be caused by, arising out of, or in connection with BCHPW's work to be performed hereunder. This release shall apply with respect to BCHPW's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.06 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and DEVELOPERS hereby agree that no claim or dispute between the CITY and DEVELOPERS 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, DEVELOPERS consent to be joined in the arbitration proceeding if DEVELOPERS' presence is required or requested by the CITY for complete relief to be recorded in the arbitration proceeding. 4.07 Assignment. DEVELOPERS shall not assign this Agreement without first obtaining the written consent of the CITY. 4.08 Notice. Any notice required to be given'under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Traffic Signal and Mitigation Agreement, Page 8 DEVELOPER BCHPW Development, LP Attn: Richard Cansler 3425 Federal Street Pasadena, TX 77504 and Trazz Properties, LLC Attn: TRAZ Momin 3103 Mossy Elm Ct Houston, TX 77059 -3227 4.09 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and DEVELOPERS and their respective successors and assigns. 4.10 Application 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. 4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.12 Ambiauities. In the event of any ambiguity in any of the terms of this 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. 4.13 Complete Agreement. ement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 4.14 Duplicate 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. 4.15 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 4.16 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 4.17 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Traffic Signal and Mitigation Agreement, Page 9 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. 4.19 Authori . The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. EXECUTED ON this th day of 20� (the "Effective Date "). OF BAYTOWN r ...� Sb r. LET IA BRYSCH, t tR4k U- a APPROVED AS TO FO Y° f��. •• ^� ACIO RAMIREZ, SR., it Attorney EXECUTED ON this the 06 day of 1204 4 BCHPW DEVELOPMENT, LP. By and through its General Partner ROLLINGBROOK INVESTMENTS, LLC (Signature) (Printed Name) (Title) Tmfftc Signal and Mitigation Agreement Page 10 EXECUTED ON this the day of , 20 . TR.AAZ PROPERTIES, LLC. By: (Signature) (Printed Name) (Title) STATE OF TEXAS § COUNTY OF § Before me, 6 e, . - , jthe undersigned notary public, on this day personally appeared q, the 4 M _ 2 of ROLLINGBROOK INVESTMENTS, LLC, the General Partner of BCHPW Development, LP, on behalf of such partnership, ✓ known to me; proved to me on the oath of ; or proved to me through his/her current (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/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and se office this o�C�r . da 'of .20/4 GERAI.DINE ANN HENRY Notary Public, State of Texas My commission E2Q15s t Notary Public in and for the State of pj— N� September My commission expires: 0 Ozk t, h STATE OF TEXAS § § COUNTY OF § Before me, , the undersigned notary public, on this day personally appeared , the of Traaz Properties, LLC, on behalf of such limited liability company, known to me; proved to me on the oath of ; or Traffic aignal and Mitigation Agtgemem Page 1 l EXECUTED ON this the _ day of STATE OF TEXAS COUNTY OF TRAAZ PROPERTIES, LLC. By: (Signature) (Printed Name) (Title) Before me, , the undersigned notary public, on this day personally appeared ' the , of ROLLINGBROOK INVESTMENTS, LLC, the General Partner of BCHPW Development, LP, on behalf of such partnership, known to me; proved to me on the oath of ; or proved to me through his/her current (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 /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of 20_ Notary Public in and for the State of Texas My commission expires: STATE OF TEXAS § COUNTY OFyy��S' § Before me, uRimf,, b !J the undersigned notary public, on this day personally appeared , the of Traaz Properties, LLC, on behalf of such limited liability company, known to me; proved to me on the oath of Traffic Signal and Mitigation Agreement, Page 11 or V proved to me through his/her current T— W iV as Ucagw- (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 /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this d day L 20�. ,.,o;: ^ ? ?%%��,, CHRISTINE SANDLIN Notary Public in and for he State of `; Notary Public, State of Texas �• My Commission Expires Texas ''" .mll.: November 08, 2014 My commission expires: �� D8 I R:\ Karen \Files \Contmcts\BCHPW Development \AgreemenV02202014.doc Traffic Signal and Mitigation Agreement, Page 12 9.Af1 N 11.1 AY N 411O1Nf NNYI ML Y6N BY M'f56 M(SlH)S: ROLUNGBROOE DRIVE R � 2860. JB' I 1 Y II. Y SfI 3CA2f / _\ I I / . rat i W HE rnmer. I• N L� j W7 R I wo 0 loo zoo Soo sc i Y - IJO ROLL/NGBROOK LLC RETAIL CENTER MINOR PLAT BEING A 8.970 ACRES TP.ACT SITUATED IN THE HARVEY WRITING SURVEY. A -840 HARPJS COUNTY. TEXAS JANUARY 2072