Ordinance No. 12,596ORDINANCE NO. 12,596
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 TEXAS CAPITAL
DEVELOPMENT CORPORATION TO INCREASE THE SIZE AND CAPACITY OF
THE WASTEWATER INFRASTRUCTURE ALONG TRI- CITIES BEACH ROAD
FROM SH 99 TO EVERGREEN ROAD; AUTHORIZING PAYMENT IN AN
AMOUNT NOT TO EXCEED NINETY THOUSAND AND NO /100 DOLLARS
($90,000.00); 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 Texas Capital
Development Corporation to increase the size and capacity of the wastewater infrastructure along Tri-
Cities Beach Road from SH 99 to Evergreen Road. 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 NINETY THOUSAND AND NO /100 DOLLARS ($90,000.00) 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 vote of the City Council of the City of
Baytown this the 14`h day of August, 2014.
ATT 'ST: yS y
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LETICIA BRYSCH, Clerk °-
APPROVED AS TO FORM:
NACIO RAMIREZ S ., City Attorney
MORCIEDES RENTERIA III, Mayor Pro Tern
\%COB FSO I 1 LegahKarenTi lesTity CouncihOrdinances\2014\August 14'' CostShareAgreementwithTexasCapitalDevelopmentCorporation .docx
Exhibit "A"
COST -SHARE AGREEMENT
THE STATE OF TEXAS
COUNTY OF HARRIS
This Cost -Share Agreement (the "Agreement ") is made and entered into between the
CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas
(the "CITY "), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and
Texas Capital Development Corporation, a Texas corporation ( "DEVELOPER "), whose address
for purposes hereof is 5950 Berkshire Ln, Suite 375, Dallas, TX 75225
WITNESSETH:
I.
1.1 Project. Subject to and upon the terms, provisions and conditions hereinafter set forth,
the parties hereto agree that CITY will increase the size and capacity of the wastewater
infrastructure to be constructed by DEVELOPER along TriCities Beach Road from SH99
to Evergreen Road from an eight -inch force main to a twelve -inch force main and
increase the new lift station wet well from eight feet (8') in diameter to twelve feet (12')
in diameter and lowering the bottom of the wet well approximately six feet (6') or as
necessary to service the entire service area with appropriately sized headworks to meet
City specifications (the "Project ").
II.
2.1 DEVELOPER's Obligations. In addition to DEVELOPER's obligations elsewhere in this
Agreement, DEVELOPER shall have the following obligations:
(a) DEVELOPER agrees that it will at its own cost and expense employ one or more
professional engineers to design the Project.
(b) DEVELOPER agrees to comply with all laws, rules or regulations of applicable
governmental authorities, in order to make the lines described herein above meet
or exceed the quality standards set by such applicable governmental authorities.
(c) DEVELOPER shall be obligated to submit plans and specifications for the
construction of the Project (the "Plans and Specifications ") to the City Engineer,
for approval and /or for required revision and approval by the City Engineer,
within one hundred eighty (180) days after the Effective Date of this Agreement,
if it has not already done so at the time of execution of this Agreement.
DEVELOPER agrees that the plans and specifications shall include the
construction and installation of both an eight -inch (8 ") diameter and a twelve -inch
(12 ") diameter force main together with the construction of a new wastewater lift
Cost -Share Agreement, Page ]
station capable of meeting future capacity requirements as set forth by the CITY
by increasing the new lift station wet well from eight feet (8') diameter to twelve
feet (12') diameter and lowering the bottom of the wet well approximately six feet
(6') or as necessary to service the entire service area with appropriately sized
headworks to meet CITY specifications.
(d) Within ten (10) days after the City Engineer's final approval of the Plans and
Specifications submitted by DEVELOPER in accordance with Section 2.1.c,
DEVELOPER shall deposit with the CITY cash in the amount of the engineer's
estimate of the construction of the eight -inch force main and the lift station with a
eight foot (8') diameter wet well and appropriately sized headworks. The Parties
understand and agree that this amount is merely a deposit which is subject to
adjustment once bid prices have been received.
(e) If the amount deposited with the CITY pursuant to Section 2(d) is less than the
bid of the lowest responsible bidder received for the eight -inch (8 ") line and the
bid cost allocation for the complete lift station with an eight foot (8') diameter wet
well and appropriately sized headworks, DEVELOPER shall tender to the CITY
the difference between 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 the bid of the lowest responsible bidder received for the eight -inch (8 ")
force main and eight foot (8') diameter wet well and appropriately sized
headworks, the CITY shall refund such excess funds within thirty (30) days after
the award of the construction contract. The parties understand and agree that no
contract will be let until DEVELOPER has deposited the monies required herein
with the CITY.
(f) The legal title to the Project and all appurtenances related thereto shall at all times
be vested in the CITY; and DEVELOPER shall have no claim thereto. As such,
DEVELOPER shall have no right or privilege to remove or interfere with any part
or portion of the Project during or after construction.
(g) At its own cost and expense, DEVELOPER shall repair or replace any damage or
injury done to any portion of the Project caused by DEVELOPER, its 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 Project
damaged by DEVELOPER, its officers, agents, employees, invitees or visitors is
not being repaired and /or replaced in accordance with this Agreement, the City
Manager shall so notify DEVELOPER in writing and require DEVELOPER 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 DEVELOPER in default and terminate this Agreement and seek any
Cost -Share Agreement, Page 2
other appropriate remedy which may be available to the CITY, including, but not
limited to, making such repairs or replacements at DEVELOPER's sole cost and
expense. It is understood if such repairs or replacements are made by the CITY,
DEVELOPER agrees to pay the cost thereof to the CITY on demand.
2.2 CITY's Obligations. In addition to the CITY's obligations elsewhere in this Agreement,
the CITY shall have the following obligations:
(a) After the City Engineer's final approval of the plans and specifications submitted
by the DEVELOPER in accordance with Section 2.1.c and after receipt of the
deposit required by Section 2.1.d, the CITY shall be obligated to advertise for
bids for the construction of an eight -inch (8 ") line and a twelve -inch (12 ") line
over the length of the Project and the construction of a new wastewater lift station
capable of meeting future capacity requirements as set forth by the CITY in
accordance with all applicable laws. After any additional required sums are paid
by DEVELOPER pursuant to Section 2.1.e, the CITY will award the construction
of the Project to the lowest responsible bidder. Thereafter, the CITY's contractor
will begin the construction of the Project in accordance with the approved plans
and specifications and continue such construction efforts thereafter in a diligent
manner until the Project is completed and accepted by the CITY.
(b) Upon request, the CITY shall provide an update on the status of the Project to the
DEVELOPER.
(c) After the receipt of the funds by the CITY that are required to be tendered by the
DEVELOPER herein, the CITY shall pay all costs and expenses of Project
construction, including, not by way of limitation, the costs of all materials, labor
and electricity used in connection with such construction and all license, permit or
inspection fees that may be charged in connection with such work.
(d) Within thirty (30) days after the final completion and acceptance of the Project by
the CITY, the CITY shall return to DEVELOPER any monies on deposit for
which the CITY has not incurred costs.
III.
3.1 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
final completion and acceptance of the Project by the CITY.
IV.
4.1 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,
Cost -Share Ajzreement, Page 3
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.
4.2 Default by DEVELOPER. If DEVELOPER is in default of this Agreement, then the
CITY shall have the right to declare DEVELOPER 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. DEVELOPER is in default
of this agreement if:
(a) DEVELOPER fails to timely perform performance of any obligation imposed
upon 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 DEVELOPER or, if the
City Manager in his sole discretion, determines that the default cannot reasonably
be cured within the fifteen (15) day period, if DEVELOPER does not commence
curative work within the fifteen (15) day period and prosecute the work to
completion with diligence;
(b) DEVELOPER 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) DEVELOPER makes any assignment of this Agreement without the written
approval of the CITY.
Should the CITY terminate this Agreement for DEVELOPER's default, the CITY will be
relieved of its obligations hereunder and DEVELOPER shall not be entitled to any
reimbursement of the costs incurred associated with the Project pursuant to Section 2.2.a.
Additionally, should this Agreement be terminated, the CITY shall be entitled to seek all
other relief which may be allowed by law. Any and all defaults declared by the CITY
shall be final and binding upon DEVELOPER.
4.3 Remedies Cumulative. All rights and remedies of the CITY and /or DEVELOPER under
this Agreement shall be cumulative and none shall exclude any other rights or remedies
allowed by law.
4.4 Amendments. This Agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto.
4.5 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. DEVELOPER assumes full responsibility for its obligations
under this Agreement performed hereunder and hereby releases, relinquishes, discharges,
and holds harmless the CITY, its officers, agents, and employees from all claims, demands,
Cost -Share Agreement, Page 4
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 DEVELOPER's
work to be performed hereunder. This release shall apply with respect to DEVELOPER's
work regardless of whether said claims, demands, and causes of action are covered in whole
or in part by insurance.
4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the
CITY and DEVELOPER hereby agree that no claim or dispute between the CITY and
DEVELOPER 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,
DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPER's
presence is required or requested by the CITY for complete relief to be recorded in the
arbitration proceeding.
4.7 Assianment. DEVELOPER shall not assign this Agreement without first obtaining the
written consent of the CITY.
4.8 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
DEVELOPER
Texas Capital Development Corporation
Attn: Vice President
5950 Berkshire Lane, Suite 375
Dallas, Texas 75225
4.9 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 DEVELOPER 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.
Cost -Share Agreement, Page 5
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 Ambiguities. 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. 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 terns 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 Severabilily. 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.
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 Authority. 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.
Cost -Share Agreement, Page 6
EXECUTED ON this the _ day of
Date ")
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
20_ (the "Effective
CITY OF BAYTOWN
By:
ROBERT D. LEIPER, City Manager
EXECUTED ON this the _ day of , 20
TEXAS CAPITAL
CORPORATION
By:
(Signature)
(Printed Name)
(Title)
STATE OF TEXAS §
COUNTY OF §
DEVELOPMENT
Before me, , the undersigned notary public, on this day personally
appeared , the of Texas Capital
Development Corporation on behalf of such corporation
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
Cost -Share Agreement, Page 7
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 120.
Notary Public in and for the State of
Texas
My commission expires:
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Cost -Share Agreement, Page 8