Ordinance No. 12,645ORDINANCE NO. 12,645
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A LITTER ABATEMENT GRANT
AGREEMENT WITH KEEP BAYTOWN BEAUTIFUL, INC; MAKING OTHER
PROVISIONS RELATED THERETO; AUTHORIZING PAYMENT IN AN AMOUNT
NOT TO EXCEED FIFTEEN THOUSAND AND NO 1100 DOLLARS
($15,000.00); 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 hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to a Litter Abatement Grant Agreement with Keep
Baytown Beautiful, Inc. A copy of the agreement is attached hereto, marked Exhibit "A," and made a
part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment in an amount
not to exceed FIFTEEN THOUSAND AND NO /100 DOLLARS ($15,000.00) in accordance with the
agreement authorized in Section 1 hereinabove.
Section 3: 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 7City Council of the City of
Baytown this the 25`h day of September, 2014.
H. DONCARLOS,
ATTEST:
LETICIA BRYSCH, City erk
APPROVED AS TO FORM:
i
ACIO RAMIREZ, SR., Ci ornev
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R:IKaren\Files\City Counci llOrdinances\2014\September 25\ KBBLitterAbatementAgreement.docx
Exhibit "A"
Litter Abatement Grant Agreement
STATE OF TEXAS §
§
COUNTY OF HARRIS §
THIS AGREEMENT made between the City of Baytown, Texas, a municipal corporation
(the "City'l, and the Keep Baytown Beautiful, Inc., a non -profit corporation incorporated under the
laws of the State of Texas C %BB').
WHEREAS, KBB's primary purpose is to empower the community to create a cleaner,
more beautiful Baytown through volunteerism and education; and
WHEREAS, subject to the terms and conditions contained herein, KBB proposes:
To coordinate and implement the annual Don't Mess with Texas Trash -Off
Baytown cleanup with multiple locations;
Y To coordinate and implement the annual West Baytown Fall Cleanup;
Coordinate and implement the Adopt -A -Site Program,
Serve as the official Keep Texas Affiliate, and maintain the existing Gold status
(or future analog thereof); and
WHEREAS, the City desires to assist KBB in fulfilling such purpose within the City by
providing a litter abatement grant and providing and placing the appropriate signs for the Adopt
A -Site Program; and
WHEREAS, the City and KBB desire to enter into this Agreement subject to the terms
and conditions herein in order to combat litter within the City of Baytown and promote
environmental stewardship;
NOW, THEREFORE, in consideration of the performance of the mutual covenants and
promises contained herein, the City and KBB agree as follows:
1.
KBB'S OBLIGATIONS
1.1 Don't Mess with Texas Trash -Off Baytown. KBB shall organize and implement the
annual community -wide clean -up at multiple site locations throughout the City of Baytown.
Such community-wide clean -up program shall be consistent with the program that is
currently being implemented by the City of Baytown. KBB's services shall include, but not
be limited to, advertising the event, managing the locations; ensuring final clean -up; and
reporting of the results to Keep Texas Beautiful, Inc., and the City of Baytown.
1.2 Annual West Baytown Fall Cleanup. KBB shall organize and implement the annual
West Baytown clean -up at one site location within the West Baytown area. Such clean-
Utter Abatement Grant Aame 01 Page 1
up program shall be consistent with the program that is currently being implemented by
the City of Baytown. KBB's services shall include, but not be limited to, advertising the
event, managing the location; ensuring final clean -up; and reporting of the results to Keep
Texas Beautiful, Inc., and the City of Baytown.
13 Adopt- A-Site Program. KBB shall organize and implement the Adopt -A -Site Program
in the City of Baytown. Such program shall be consistent with the program that is
currently being implemented by the City of Baytown. KBB's services shall include, but
not be limited to, advertising the program, processing applications, ensuring quarterly
clean -ups are completed at each adopted site, notifying the City of the of fulfillment of
the second quarter clean -up requirement has been satisfied in order to attain a sign at the
site, and requesting a sign be erected by the City. Should KBB desire to alter the Adopt -
A -Site Program, KBB must notify the City and obtain its written consent prior to
implement any change.
1.4 Serve as the official Keep Texas Beautiful Affiliate. KBB shall remain in good
standing with Keep Texas Beautiful, Inc., and continue to maintain Gold Affiliate Status
throughout the term of this Agreement.
15 Specific Restrictions on Use of Funds. KBB agrees to use the funds provided by the City
pursuant to this Agreement in furtherance of KBB's obligations specified in Sections 1.1-
through 1.4. Funds which are unused during a contract year shall be refunded to the City
within thirty (30) days after the conclusion of the contract year. KBB shall not utilize the
funds provided herein for any expenditure which has not been specifically documented to
satisfy the purposes set forth in this section.
1.6 KBB's Compliance. KBB agrees to comply with all laws, rules or regulations of applicable
governmental authorities in performing the services required herein.
1.7 KBB's Meetings/Benefits. KBB shall send written notices of and invitations to all
meetings of its membership as well as its board to the City Manager, the Director of Health,
and any other officer or employee of the City as requested by the City Manager.
1.8 KBB's Budget.
(a) Submission. KBB shall prepare and submit to the City Manager of the City an
annual budget for approval for such operations of KBB proposed to be funded by
this Agreement on or before July 1 of each year during the term of this Agreement.
This budget shall specifically identify proposed expenditures of funds provided by
the City. Based upon the budget, the City should be able to audit specifically the
purpose of each individual expenditure of public funds. The City shall not pay to
KBB any funds as set forth in Article Il of this Agreement unless a budget has been
approved in writing by the City authorizing the expenditure of funds.
(b) Approval. KBB acknowledges that the approval of such budget by the City creates
a fiduciary duty in KBB with respect to the funds paid by the City to KBB under this
Litter Abatement Omnt AsmentenL Page 2
Agreement. KBB shall expend the funds only in the manner and for the purposes
specified in this Agreement and in the budget as approved in writing by the City.
1.9 Financial Records. KBB shall maintain complete and accurate financial records of each
expenditure of the funds provided by the City. These funds shall be classified as restricted
funds for audited financial purposes, and may not be used for contracted services, including,
but not limited to, auditing fees and attorney fees. Upon reasonable advance written request
of the City Manager or his designee, KBB shall make such financial records available for
inspection and review and shall provide copies of the same if so requested. KBB
understands and accepts that all such financial records, and any other records relating to this
Agreement shall be subject to the Texas Public Information Act, as hereafter amended, and
the Local Government Records Act, as amended.
1.10 Annual Report. Within sixty (60) days after the end of each contract year during the
term hereof or within sixty (60) days after termination of this Agreement, KBB will
furnish to the City a performance report of its work under this Agreement which shall
reflect overall activities conducted and expenditures made pursuant to this Agreement for
the contract year. This report shall be in a form approved by the City Manager or his
designee and must be signed and verified by an officer of KBB as being true and correct.
KBB shall respond promptly to any request from the City Manager or his designee for
additional information relating to the activities performed under this Agreement.
11.
CITY'S OBLIGATIONS
2.1 Grant Payments.
(a) Payment. Subject to Subsections (b) and (c) of this section, as a consideration
for KBB's activities set forth in this Agreement, the City agrees to pay KBB an
amount not to exceed FIFTEEN THOUSAND AND NO 1100 DOLLARS
($15,000.00) for each contract year, which shall end on September 3& of each
year during the term hereof. The parties understand and agree that the City's
obligation hereunder shall not be greater than the actual expense incurred by KBB
in performing the services required hereunder.
(b) Appropriations. Should the City Council appropriate for this Agreement a
different amount, whether higher or lower, than the amount specified in Section
3.1 hereinabove, the City shall pay an amount not to exceed such appropriated
amount. However, the payment obligation under this subsection also shall not be
greater than the actual expense incurred by KBB in performing the services
required in this Agreement.
(c) Indebtedness. If KBB, at any time during the term of this agreement, incurs a
debt, as defined in section 2 -662 of the Code of Ordinances of the City of
Baytown, KBB shall immediately notify the City's Director of Finance in
9
writing. If the City's Director of Finance becomes aware that KBB has incurred a
debt, the City's Director of Finance shall immediately notify KBB in writing. If
KBB does not pay the debt within 30 days of either such notification, the City's
Director of Finance may deduct funds in an amount equal to the debt from any
payments owed to KBB under this Agreement, and KBB waives any recourse
therefor.
(d) Due Date. The City shall pay the grant payment on or before the thirtieth
(30th) day after approving KGB's budget and receiving a proper invoice therefor.
However, the parties agree that any funds not used in accordance with this
agreement shall be refunded to the City within thirty (30) days after the
conclusion of the applicable contract year.
2.2 Services.
(a) Support for KGB's Annual Clean -Up Events. The City, in support of KGB's
performance of its obligations contained in Section 1.1 and 1.2,
shall provide the roll-off containers for such events and
may, upon request and an agreement therefor, provide staff members at a
reduced hourly or flat rate for such events.
(b) Support for KGB's Adopt- A-Site Program. The City, in support of KBB's
performance of its obligations contained in Section 1.3, shall purchase and install
all necessary roadway signs in accordance with the program's requirements and
those of the City.
III.
TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the date of execution by the City
Manager and terminate September 30, 2014, or after KBB has fully complied with all terms
and conditions herein, whichever is later. Thereafter, this Agreement shall automatically
renew for one -year periods, unless otherwise terminated in accordance with this article.
Only those expenditures authorized by this Agreement and contained in the budget approved
by the City, which are actually incurred for events and activities taking place within the term
of this Agreement, are eligible for funding. Any ineligible expenditures or unspent funds
shall be forfeited to the City upon termination of the Agreement.
3.2 Termination Without Cause.
(a) This Agreement may be terminated by either party, with or without cause, by giving
the other party thirty (30) days' advance written notice.
(b) In the event this Agreement is terminated by either party pursuant to Section
3.2(a), KBB shall be entitled to payment for its services satisfactorily performed
in accordance with this Agreement up to the date of termination subject to Section
3.2(c).
it -Tic mTM
(c) If this Agreement is terminated pursuant to Section 4.2(a), KBB will provide the
City:
(1) within ten (10) business days from the termination notification, a short-
term budget of probable expenditures for the remaining thirty -day period
between termination notification and contract termination. This budget
will be presented to the City;
(2) within ten (10) business days of a request from the City, a listing of
expenditures that have occurred since the last required reporting period;
and
(3) a final accounting of all expenditures on the day of termination.
Any use of remaining funds by KBB after notification of termination and prior to
termination is conditioned upon such contractual obligations having been incurred
and entered into in the good faith performance of those services contemplated in
Section 1.1.
33 Automatic Termination. This Agreement shall 'automatically terminate upon the
occurrence of any of the following events:
(a) The termination of the legal existence of KBB;
(b) The insolvency of KBB, the filing of a petition in bankruptcy, either voluntarily or
involuntarily, or an assignment by KBB for the benefit of creditors;
(c) The continuation of a breach of any of the terms or conditions of this Agreement by
either the City or KBB for more than thirty (30) days after written notice of such
breach is given to the breaching party by the other party; or
(d) The failure of KBB to submit an annual report which complies- with the reporting
procedures required herein and generally accepted accounting principles.
3.4 In the event that this Agreement is terminated pursuant to Section 3.2 or 3.3, KBB agrees to
refund any and all unused funds, or funds determined by the City to have been used
improperly within 30 days after termination of this Agreement. Late payments shall
accrue interest at the rate provided in Section 2251.025 of the Texas Government Code.
IV.
GENERAL PROVISIONS
4.1 Independent Contractor. KBB shall operate as an independent contractor as to all services
to be performed under this Agreement and not as an officer, agent, servant, or employee of the City.
KBB shall have exclusive control of its operations and performance of services hereunder, and such
Fitter Abatement Qrant Agmment Page 5
persons, entities, or organizations performing the same and KBB shall be solely responsible for the
acts and omissions of its directors, officers, employees, agents, and subcontractors. KBB shall not
be considered a partner or joint venturer with the City, nor shall KBB be considered nor in any
manner hold itself out as an agent or official representative of the City.
4.2 Insurance. KBB shall, at a minimum, provide insurance as follows:
4.3
1. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CO 00 0104 13
• No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
The following are general requirements applicable to all policies:
➢ AM Best Rating of B +; VII or better for all liability policies.
Insurance carriers licensed and admitted to do business in State of Texas will
be accepted.
Upon request of and without cost to City of Baytown, certified copies of all
insurance policies and/or certificates of insurance shall be furnished to City of
Baytown's representative.
➢ Certificates of insurance showing evidence of insurance coverage shall be
provided to City of Baytown's representative prior to any work being
performed at the site.
Liability policies must be on occurrence form.
Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after
thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
The City of Baytown, its officers, agents and employees are to be added as
Additional Insureds to all liability policies.
Additionally, KBB shall furnish separate certificates and endorsements for each at -risk
vendor, including those supplying amusement activities. All coverage of such vendors
shall be subject to all of the requirements stated herein.
lndemnity.
KBB AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS,
AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO
AS THE "CITY "), FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED
TO, ALL EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES PROVIDED BY KBB
PURSUANT TO THIS AGREEMENT, THE CONDUCT OR
MANAGEMENT OF KBB'S BUSINESS OR ACTIVITIES, OR
FROM ANY OTHER ACT OR OMISSION BY KBB, ITS AGENTS,
AND EMPLOYEES, WHEN PERFORMING SERVICES IN
ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH
INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT
NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR
ENTITY AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF
KBB. IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH KBB AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY KBB
TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS,
AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I)
THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE
IS A CONCURRING CAUSE OF THE RESULTING INJURY,
DEATH OR DAMAGE WITH ANY OTHER PERSON OR ENTITY
AND /OR (II) KBB'S JOINT AND /OR SOLE 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, DEATH 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 OF THE ABOVE, KBB FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE CITY.
The indemnity provided hereinabove shall survive the termination and/or expiration of
this Agreement.
4.4 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. KBB assumes full responsibility for its work 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
Litter Abatement Grant Aereemenb Page 7
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 KBB's work to be performed hereunder. This release shall
apply with respect to KBE's work regardless of whether said claims, demands, and causes
of action are covered in whole or in part by insurance.
4.5 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the
City and KBB hereby agree that no claim or dispute between the City and KBB 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, KBB consents to be joined in the arbitration
proceeding if KBB's presence is required or requested by the City of complete relief to be
recorded in the arbitration proceeding.
4.6 Force Majeure. In the event the Event is cancelled due to a force majeure, the refund
obligations of KBB under this Agreement pursuant to Sections 1. 1, 3.2, and 4.4 will not
be expanded but will remain unchanged. Any funds provided by the City pursuant to
Section 3.1 and either not expended or not expended in full compliance with this
Agreement shall be refunded to the City pursuant to the terms of this Agreement.
The term "force majeure" as used herein, shall include acts of God, acts of the public
enemy, and acts not within the control of the parties hereto, which by the exercise of due
diligence and care could not have avoided
4.7 Assignment. KBB 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
Atin: City Manager
P.O. Box 424
Baytown, TX 77522
KBB
Keep Baytown Beautiful, Inc.
Attn: President
Baytown, TX 7752
4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty,
obligation, and Iiability set forth herein shall be binding upon and inure to the benefit and
obligation of the City and KBB and their respective successors and assigns.
Litter Abatement Grant Agreement. Page 8
4.10 Application of Laws. All temps, conditions, and provisions of this Agreement are subject
to and shall be interpreted in accordance with all applicable federal laws, laws of the State of
Texas, the Charter of the City of Baytown, all ordinances passed pursuant thereto, and all
judicial determinations relative thereto. The place of making and the place of performance
for all purposes shall be Baytown, Harris County, Texas.
4.11 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.
4.12 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. The terms and conditions of
Us Agreement shall prevail notwithstanding any variance in this Agreement from the terms
and conditions of any other document relating to this transaction or these transactions.
4.13 Duplicate Originals. This Agreement is executed in duplicate originals.
4.14 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
4.15 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.
4.16 No Additional Waiver Implied. The failure of any party hereto to insist, in any one
or more instances, upon performance of any of the terms, covenants or conditions of this
Agreement, shall not be construed as a waiver or relinquishment of the future
performance of any such terms, covenants or conditions by any other party hereto, but the
obligation of such other party with respect to such future performance shall continue in
full force and effect.
4.17 Modification. Except as otherwise provided herein, this Agreement shall be subject to
change or modification only with the mutual written consent of the parties hereto.
4.18 Authority. The officers executing this Agreement on behalf of the parties hereby represents
that such officers have full authority to execute this Agreement and to bind the party he/she
represents.
4.19 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
Litter Abatement Grant Agee nenL Page 9
EXECUTED ON this the — day of 22014.
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 l day of 2014.
KEEP BAYTOWN BEAUTIFUL, INC.
(Title)
(Printed Name)
Ar s den (-
(Title)
R:1KarenlF8eWAnewmAK8B Litter Abatement AgmemenflLittorAbatemrntASWMMt doe
Litter Abatement Grant Agament. Page 10