Ordinance No. 12,630ORDINANCE NO. 12,-630
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 THE AGREEMENT FOR FUNDING OF PUBLIC IMPROVEMENTS
WITH EXXON MOBIL CORPORATION FOR ROADWAY IMPROVEMENTS
ALONG SPUR 330 FRONTAGE ROAD; MAKING OTHER PROVISIONS RELATED
T14ERETO;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 the Agreement for Funding of Public Improvements
with Exxon Mobil Corporation for roadway improvements along Spur 330 frontage road. A copy of said
agreement is attached hereto as Exhibit "A," and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from ayi� after its passage by the
1'
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote n City Council of the City of
Baytown this the 28`h day of August, 2014.
H. DONCARLOS, Mayor
ATTEST:
LETICIA BRYSCH, Chi Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., (0 Attorney
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NACIO RAMIREZ, SR., (0 Attorney
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Exhibit "A"
AGREEMENT FOR FUNDING OF PUBLIC
IMPROVEMENTS
STATE OF TEXAS
COUNTY OF HARRIS
This Agreement for Funding of Public Improvements (this "Agreement "), dated August
2014, is made between the CITY OF BAYTOWN, a municipal corporation located in
Harris and Chambers Counties, Texas (the "City ") and EXXON MOBIL CORPORATION, a
New Jersey corporation ( "ExxonMobil "). The City and ExxonMobil are jointly referred to
herein as "the Parties."
RECITALS:
WHEREAS, ExxonMobil will expand its existing Baytown Olefins Plant, located at 3525
Decker Drive, Baytown, TX 77520 (the "Expansion "); and
WHEREAS, the Expansion will include additional personnel and result in increased
traffic; and
WHEREAS, traffic impact assessments performed by ExxonMobil consultant Klotz
Associates, Inc. identified specific roadway improvements designed to reduce anticipated traffic
delays; and
WHEREAS, to ensure that such roadway improvements will be completed by April 2015,
ExxonMobil is willing to participate in funding the cost of the design and construction of the
improvements and to convey property to the City necessary for the improvements; and
WHEREAS, the City is willing to execute a separate agreement with Texas Department
of Transportation ( "TxDOT ") for TxDOT to bid out and oversee the construction of the
improvements 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.
EXXONMOBIL RESPONSIBILITIES
1.01 Convey Property. In consideration of the mutual covenants and agreements contained
herein, ExxonMobil agrees:
(a) To convey property to the City along Decker Drive for right turn /deceleration
lanes at the ExxonMobil driveways commonly known as Butterworth Drive and
Agreement for Funding of Public Improvements, Page 1
Shady Hill and for the relocation of utilities if necessary as required by TxDOT;
and
(b) To convey property to the City from the edge of the new roadway as required by
TxDOT.
Once conveyed by ExxonMobil to the City, such property shall be subsequently
conveyed by the City to TxDOT. The boundaries of such property shall generally be
those as depicted in Exhibit "A," attached hereto and incorporated herein for all intents
and purposes (the "Property").
All expenses associated with the conveyance of the Property contemplated in this section,
including, but not limited to, the preparation and processing of the replat of the Property,
all documents and metes and bounds descriptions necessary for the conveyance, and
recording costs, shall be borne exclusively by ExxonMobil. The conveyance herein
contemplated will be granted to the City via a document(s) which must be approved by
the City Attorney. Such grants shall occur prior to the commencement of any
construction of the Public Improvements (hereinafter defined).
1.02 Professional Services. ExxonMobil agrees to engage competent, experienced design
professionals for the design pertaining to the roadway, utility relocations and associated
improvements on Decker Drive between Baker Road and Rollingbrook Drive, including,
but not limited to, the following:
Decker Drive at Baker Road
• 200 foot eastbound right turn lane
• 200 foot southbound left turn lane
Baytown Olefins Plant Entrances
• 100 foot eastbound right turn lane at Butterworth Drive
• 350 foot eastbound right turn lane at the Shady Hill Entrance
Decker Drive
Widen eastbound Decker Drive from the exit ramp south of the Shady Hill
Entrance to San Jacinto Avenue/Rollingbrook Drive
Dedicated receiving lane for the eastbound U -turn at San Jacinto Avenue
Flexible post traffic delineators (candle- sticks) at one location
(the "Public Improvements ")
The bid phase and construction phase associated with the Public Improvements will be
performed by TxDOT and reviewed by the City as required or appropriate. The design
professionals will comply with all laws, rules or regulations of applicable governmental
authorities in order to meet or exceed the quality standards set by such applicable
governmental authorities. As required or as appropriate, ExxonMobil and its design
professionals will work with TxDOT and the City to submit the plans and specifications
Aareement for Funding of Public Improvements, Page 2
associated with the Public Improvements for review and approval, including any changes
thereto.
1.03 Right -of- Entry. Upon advance notice, ExxonMobil grants to the City and to TxDOT,
along with their respective officers, agents, employees, and contractors, the right and
privilege to enter ExxonMobil's premises immediately adjacent to the Property (as
specified in Section 1.01) at all reasonable hours in order to construct the Public
Improvements.
II.
CITY'S RESPONSIBILITIES
2.01 TxDOT Agreement. The City shall enter into an Advanced Funding Agreement with the
State of Texas, by and through TxDOT for the construction of the Public Improvements
(the "Advanced Funding Agreement "). Pursuant to such agreement, TxDOT will
advertise for bids and provide construction oversight and construct the Public
Improvements. The City will provide funding for the Public Improvements by passing
through the payment obligations of ExxonMobil as described in Article III to TxDOT.
Specifically, TxDOT will:
a. construct or cause to be constructed the Public Improvements in accordance with
the plans and specifications as approved pursuant to Section 1.02;
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 Public
Improvements;
C. obtain all necessary permits and approvals from the City and all other
governmental officials and agencies having jurisdiction;
d. provide supervision and inspection services for all phases of construction of the
Public Improvements to ensure that the Public improvements are in accordance
with the approved plans and specifications; and
e. pay for all costs associated with the construction of the Public Improvements,
subject to the obligation of ExxonMobil to advance funds to the City for such
purpose as provided in Article I1I.
2.02 Progress of Work. Upon request, the City shall obtain from TxDOT an update of the
status of the construction of the Public Improvements and provide the update to
ExxonMobil.
2.03 Title. The legal title to the roadway improvements shall at all times vest in the State of
Texas and the title to the utility improvements shall at all times vest in City. ExxonMobil
shall have no claim thereto.
2.04 Maintenance. Upon completion of the Public Improvements, TxDOT will assume
responsibility for the maintenance of the roadway and the City will assume responsibility
for the associated utilities.
Agreement for Funding of Public Improvements, Page 3
M.
COSTS
3.01 Responsibility for Costs. ExxonMobil expressly understands and agrees that all costs
associated with the design of the Public Improvements shall be borne by ExxonMobil,
and ExxonMobil shall not seek recovery of costs from the City or the State of Texas for
the design of the Public Improvements or any costs associated therewith. Subject to the
monetary cap described in Article III, ExxonMobil expressly understands and agrees that
all costs associated with the construction of the Public Improvements shall be borne by
ExxonMobil, and ExxonMobil shall not seek recovery of costs from the City or the State
of Texas for the construction of the Public Improvements or any costs associated
therewith. It is estimated that the Public Improvements will cost no more than
$2,300,000 USD (two million three hundred thousand U.S. Dollars) ( "Estimated Cost ").
The Estimated Cost consists of $2,090,000 USD (two million ninety thousand U.S.
Dollars) plus an additional $210,000 USD (two hundred ten thousand U.S. Dollars) for
contingency.
It is expressly understood and agreed that the City is not obligated to expend any of the
City's own money under this Agreement or the Advanced Funding Agreement.
ExxonMobil is responsible for funding the cost of the Improvements up to the Estimated
Cost.
Notwithstanding such Estimated Cost, both the City and ExxonMobil recognize and
acknowledge that some completely unanticipated factors associated with roadway
construction can increase originally- anticipated budgets, even when such budgets include
contingencies. Such factors can include, but are not limited to, unforeseen engineering
issues, excessive delays due to unanticipated weather events of character or duration, and
subsurface surprises. If any such factors occur which would exceed the Estimated Cost,
ExxonMobil agrees to reimburse the City for such costs up to an additional amount of
$2,000,000 USD (two million U.S. Dollars) ( "Extra Contingency "). Accordingly, the
maximum amount that ExxonMobil will remit to the City under Article III for costs of
the Public Improvements would be $4,300,000 USD (four million three hundred
thousand U.S. Dollars), i.e., the Estimated Cost plus the Extra Contingency.
In addition, in the extremely unlikely event that such factors exceed even the Extra
Contingency of $2,000,000 USD (two million U.S. Dollars), ExxonMobil agrees to
discuss such additional amounts with the City and negotiate in good faith with the goal of
reaching a mutually agreeable outcome with respect to the liability for such additional
amounts.
The City will promptly notify ExxonMobil about any factors that would: (a) exceed
$2,090,000 USD (two million ninety thousand U.S. Dollars) in cost, (b) exceed the
Estimated Cost, or (c) exceed the Extra Contingency. The City will furnish Exxon
information relating to the causes of the exceedance(s) and anticipated associated costs.
3.02 Payments due. ExxonMobil shall remit to the City the Estimated Cost at least seventy -
five (75) days prior to the date set for TxDOT's receipt of construction bids. The City
Agreement for Funding of Public Improvements, Page 4
will submit an invoice for this amount and ExxonMobil will use the previously agreed
payment instructions to transmit the payment. This payment shall be subject to
adjustment as specified in Section 3.03. The City will not pay interest on any funds
provided by ExxonMobil.
3.03 Adjustments.
(a) Additional Prepay. In the event it is determined that the funding provided by
ExxonMobil exceeds the Estimated Cost, the City shall send ExxonMobil written
notification stating the amount of additional funding required and the reasons for
the needed additional funds as specified by TxDOT. Within fifteen (15) days of
such notification, ExxonMobil will transmit to the City, its check made payable to
the City of Baytown in an amount equal to the increased costs.
(b) Refund Excess Prepayment. If the amount(s) tendered pursuant to Sections 3.02
and 3.03(a) exceeds the costs to TxDOT for the Public Improvements and the City
receives a refund from TxDOT or the State of Texas for the excess amount or the
City retains funds submitted to the City by ExxonMobil that were in excess of the
funds requested by TxDOT or remitted by the City to TxDOT, such excess
amount(s) will be refunded by the City to ExxonMobil, within thirty (30) days
after receipt of the audit of the project costs by the State and receipt of excess
funds remitted by the City to TxDOT or the State of Texas.
3.04 Audit. ExxonMobil 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.
IV.
TERM AND TERMINATION
4.01 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
Public Improvements and the subsequent audit of Project funds performed by the State.
4.02 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,
Agreement for Funding of Public Improvements, Page 5
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.
4.03 Termination. This Agreement may be terminated in the following manner:
a. By mutual written agreement and consent of both Parties;
b. By the City if ExxonMobil fails to fulfill the obligations set forth herein;
C. By ExxonMobil if the City, TxDOT, or the State of Texas fails to fulfill the
obligations set forth herein; or
d. By the City if the State of Texas terminates its agreement with the City for the
Public improvements.
The termination of this Agreement shall extinguish all rights, duties, obligations and
liabilities of the Parties under this Agreement, except for
➢ any cost incurred because of the breach; and
➢ any termination expenses for which the City may be liable under the Advanced
Funding Agreement.
If the Public Improvements are not constructed, ExxonMobil may seek reimbursement of
the funding it provided pursuant to this Agreement.
V.
GENERAL PROVISIONS
5.01 Limited Release. With the exception of the City's obligations as specified in Section
2.01 ( "TxDOT Agreement "), Section 2.02 ( "Progress of Work ") and the obligation of the
City to refund excess prepayments under Section 3.03(b) ( "Refund Excess Prepayment "),
ExxonMobil 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, that is caused by or alleged to be caused
by, arising out of, or in connection with this Agreement. ExxonMobil 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, and causes of action of every kind and character
that is caused by or alleged to be caused by, arising out of, or in connection with
ExxonMobil's obligations hereunder. This release shall apply with respect to
ExxonMobil's work regardless of whether said claims, demands, and causes of action are
covered in whole or in part by insurance.
5.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
the City and ExxonMobil hereby agree that no claim or dispute between the City and
ExxonMobil arising out of or relating to this Agreement shall be decided by any
arbitration proceeding including, without limitation, any proceeding under the Federal
A@reement for Funding of Public Improvements, Page 6
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, ExxonMobil consents to be joined in the arbitration proceeding if
ExxonMobil's presence is required or requested by the City for complete relief to be
recorded in the arbitration proceeding.
5.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or
waive, in whole or part, the sovereign immunity of the City.
5.04 Notice. Any notice permitted or required to be given in this Agreement to ExxonMobil
shall be given by registered or certified United States Mail, postage paid, return receipt
requested and addressed to Exxon Mobil Corporation, Attention: Mr. Timothy J.
Covington, Overall Construction and SHE Manager, ExxonMobil Research and
Engineering Company, at 2800 Decker Drive, Baytown, Texas 77520. 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,
address 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.
5.05 Independent Contractor. The relationship between ExxonMobil and the City shall be that
of an independent contractor.
5.06 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. The
City shall never be subject to any liability in damages to any customer or contractor of
ExxonMobil for any failure to perform its obligations under this Agreement.
5.07 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.
5.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
5.09 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.
5.10 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.
Agreement for Funding of Public Improvements, Page 7
5.11 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.
5.12 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.
5.13 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.
5.14 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.
5.15 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.
5.16 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.
5.17 Authori1y. 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.
5.18 Agreement Read. The Parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
5.19 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 ExxonMobil and the City hereto execute this
Agreement on this day of , 2014 (the "Effective Date ").
Agreement for Funding of Public Improvements, Page 8
EXXON MOBIL CORPORATION
(Signature)
(Printed Name)
(Title)
ATTEST:
(Signature)
(Printed Name)
(Title)
Agreement for Funding of Public Improvements, Page 9
CITY OF BAYTOWN, TEXAS
Stephen H. DonCarlos, Mayor
ATTEST:
Leticia Brysch, City Clerk
3
Agreement for Funding of Public Improvements
City of Baytown and ExxonMobil Corporation
Exhibit A —1 of 2
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Agreement for Funding of Public Improvements
City of Baytown and ExxonMobil Corporation
Exhibit A — 2 of 2
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