Ordinance No. 12,855ORDINANCE NO. 12,855
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE JOINT RECREATIONAL FACILITIES
AGREEMENT FOR BOWIE SCHOOL PARK WITH THE GOOSE CREEK
CONSOLIDATED INDEPENDENT SCHOOL DISTRICT; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO
EXCEED TWENTY -FIVE THOUSAND AND NO /100 DOLLARS
($25,000.00); 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 Mayor to execute and the City Clerk to attest to the Joint Recreational Facilities Agreement
for Bowie School Park with the Goose Creek Consolidated Independent School District. 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 accordance
with the agreement authorized in Section 1 hereof in an amount not to exceed TWENTY -FIVE
THOUSAND AND NO /100 DOLLARS ($25,000.00).
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO/ 100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
(25%).
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 to of the City Council of the
City of Baytown this the 14th day of May, 2015.
APPROVED AS TO FORM:
IL
N y Attorney
NCARLOS, Mayor
'- , "cobfs0l%legallKaren'. Files \City Council .Ordinances\2015\May 14` GCCISDJointRecreationalFacilitiesAgreement .doc
Exhibit "A"
INTERLOCAL AGREEMENT
FOR A JOINT RECREATIONAL FACILITIES
AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, this Interlocal Agreement for a Joint Recreational Facilities Agreement,
hereinafter called "Agreement," is made and entered into by and between the Goose Creek
Consolidated Independent School District, an independent school district and political
subdivision of the State of Texas, hereinafter called "District" and the City of Baytown, a
municipal corporation located in Hams and Chambers Counties, Texas, hereinafter called
"City."
WITNESSETH:
WHEREAS, in 1968, the District and the City determined that the joint use of property at
James Bowie Elementary, located at 220 Clayton Drive, Baytown, Texas 77520, for both school
and park purposes was to the mutual benefit of the City and the District and the residents of both
governmental entities in that the public had access to park facilities; and
WHEREAS, the District and the City reaffirm that the joint use of the park at James
Bowie Elementary School results in a substantial savings and benefit to the public; and
WHEREAS, the District and the City desire to continue such joint use and to enhance the
park facilities at such location for the use and benefit of the general population of the City, and
especially for the benefit of school -aged special needs children; and
WHEREAS, the District desires to develop or cause to be developed a portion of James
Bowie Elementary School property, such a park for the benefit of school -aged special needs
children, as generally depicted in Exhibit "B," which is attached hereto and incorporated herein
for all intents and purposes (the "Project "); and
WHEREAS, the City and the District are both agreeable to contributing monies for the
purchase of equipment and the construction of the Project; and
WHEREAS, the District and the City find it will increase the efficiency and effectiveness
of their respective entities as required by Section 791.001, et seq. of the Texas Government
Code, the Texas Interlocal Cooperation Act ( "the Act "), and will be in their best interests and the
interest of the public to cooperate in creating the Project; and
NOW THEREFORE, in consideration of the mutual covenants, agreement and benefits to
both parties. it is agreed as follows:
Interlocal A rea ement, Page 1
I.
JOINT OPERATION AND USE
1.01 Joint Operation. Subject to the terms hereof, the District and the City agree to jointly
operate a park - playground at James Bowie Elementary School as more particularly
depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents
and purposes (the "Property "). A portion of the Property shall be used for the
construction and maintenance of the Project as hereinabove defined.
1.02 Joint Use.
(a) School Hours. During the hours all children are required to be in school, the
District shall have the right to use the park and the playground in any manner it
sees fit in conducting its school program. During such time the District shall have
the right to exclude the general public from such area and exercise control for the
use of such area by its students as necessary as determined by the District.
(b) Non - school Hours. During the hours all children are not required to be in school,
the park shall be open to use by the general public during the hours specified in
Section 70 -1 of the Code of Ordinances, Baytown, Texas, unless the District and
the City through their respective chief administrative officials have agreed
otherwise in writing for certain District events.
H.
CITY'S RESPONSIBILITIES
2.01 Design. In consideration of the District's agreement to continue and expand the joint
park at James Bowie Elementary School and to contribute to the same as described in
Article III hereof, the City agrees to use its own forces to design the Project. The design
of the Project must be approved in writing by the District's superintendent prior to the
City's acquisition and installation of the playground equipment.
2.02. Purchase of Equipment. Once the design of the playground has been approved in writing
in accordance with Section 2.01, the City shall acquire the Equipment through a
competitive purchasing process in compliance with all laws applicable to the City.
2.03 Construction/installation. The City agrees, at its sole cost and expense, to use its own
forces to construct Project on the Property in accordance with the approved design.
Once construction commences, the City agrees to continue such construction efforts
thereafter in a diligent manner until the Project is completed and accepted by the District
and the City. The expected completion date of the Project is July 31, 2015. The City
agrees that its forces used in the construction of the Project shall be competent and
experienced individuals. The City shall provide administration and oversight of the
Project.
Interlocal Agreement, Page 2
2.04 Progress of Work. Upon request, the City shall provide an update of the status of the
construction of the Project to the District.
2.05 Maintenance. The City, at its sole cost and expense, shall be responsible for all
maintenance of the park equipment located on the Property throughout the term of this
Agreement, including, but not limited to the following:
(a) Performing all necessary work in order to ensure that all of the park facilities
remain in a good safe condition; and
(b) Taking all necessary precautions to ensure that the equipment used at the park is
in good operating order and safe for the operator and the public and maintained in
accordance with the U.S. Consumer Product Safety Commission Playground
Safety Guidelines.
Furthermore, the City shall be responsible for the maintenance of the Property on which
the playground is located for beginning on the day after the District recesses for the
summer vacation until the day before the first day of school of each year during the term
of the agreement. Such maintenance during this summer period shall include, but not be
limited to, the following:
(a) Edging and trimming around all facilities, trees, curbs and the sidewalk;
(b) Keeping the park premises free from rubbish and debris; and
(c) Trimming, weeding, watering and otherwise maintaining all special areas,
including flower beds, trees and shrub groupings.
2.06 Notice of Condition of Property. The City agrees that during the term of this Agreement
for which the District is required to maintain the Property pursuant to Section 3.03, it will
report to the District any condition existing on the Property which is dangerous or could
become dangerous to any person who uses the Property. Upon notification the District
shall promptly respond and take such remedial measures as it determines the
circumstances require. However, nothing herein stated shall place any duty on the City to
inspect and report such conditions, nor create any additional obligation, liability or
responsibility beyond that which the City already has, if any, to maintain the property in a
reasonably safe condition during the period specified in Section 2.05.
III.
DISTRICT'S RESPONSIBILITIES
3.01 Right -of- Entry. The District, however, grants to the City the right and privilege to enter
the Property at all reasonable hours in order to perform the services necessary for the
completion of the Project, as long as the City's entry does not unreasonably impede the
District's educational mission.
3.02 Title. Once the Project is completed and accepted by both the City and the District, the
legal title to the Project shall vest in the District.
lnterlocal Agreement, Page 3
3.03 Maintenance. The District, at its sole cost and expense, shall be responsible for all
maintenance of the park located on the Property throughout the term of this Agreement
for the period beginning on the first day of school and ending on the last day of school of
each school year during the term of the Agreement. Such maintenance shall include, but
not be limited to, the following:
(a) Edging and trimming around all facilities, trees, curbs and the sidewalk;
(b) Keeping the park premises free from rubbish and debris; and
(c) Trimming, weeding, watering and otherwise maintaining all special areas,
including flower beds, trees and shrub groupings.
3.04 Alteration. If the District desires to modify the area of the park because of the
construction of additional school facilities during the term of this Agreement, the District
will (i) expediently modify and/or reconstruct the park improvements, as appropriate, and
pay all costs associated therewith or (ii) if the park improvements are not reconstructed,
will pay the City (a) a proportionate amount of costs the City expended upon the original,
based upon the difference between the normal expected life of the destroyed property and
its unused life plus (b) the cost of initial construction and installation prorated based upon
the unexpired term of this Agreement at the time of destruction.
3.05 Notice of Condition of Property. The District agrees that during the term of this
Agreement for which the City is required to maintain the Property pursuant to Section
2.05, it will report to the City any condition existing on the Property which is dangerous
or could become dangerous to any person who uses the Property. Upon notification the
City shall promptly respond and take such remedial measures as it determines the
circumstances require. However, nothing herein stated shall place any duty on the
District to inspect and report such conditions, nor create any additional obligation,
liability or responsibility beyond that which the District already has, if any, to maintain
the property in a reasonably safe condition during the period specified in Section 3.03.
4.01
IV.
SHARED COSTS
Financial Contribution. The parties shall be required to contribute the following for the
design, equipment and construction of the Project, which the parties agree is fair
compensation for the design, purchase and construction of the project:
It is expressly understood and agreed that if the playground and park equipment for the
Project costs in excess of SEVENTY -FIVE THOUSAND AND NO 1100 DOLLARS
($75,000.00), the City may, without being in breach of this Agreement:
(a) provide such additional funding as necessary to cover the entire amount of the
additional costs;
Interlocal AMment, Page 4
(b) obtain additional funding as necessary to cover the entire amount of the
additional costs from other persons or entities;
(c) reject all bids and re- advertise for bids for construction of -the Project in
accordance with the approved or revised design in the same manner as before
and under the same conditions; or
(d) attempt to negotiate an amendment to this Agreement to provide for payment of
the additional costs, and if such an amendment is obtained, proceed under its
terms. If the parties fail to agree to an amendment to this Agreement, the City
may proceed under one of the other three options.
4.02 Payments due. All payments required under this Agreement pursuant to Section 4.01
must be made from current revenues of the paying party. Within thirty (30) days after the
Effective Date hereof, the District will deliver to the City a check payable to the City in
the lump sum amount specified in Section 2.02. Delinquent payments shall accrue
interest at the rate specified in Section 2251.021 of the Texas Government Code.
4.03 Audit. The District 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 five (5) years thereafter.
V.
TERM AND TERMINATION
5.01 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 December 31, 2036. This
agreement may be extended by mutual agreement of the parties.
5.02 Termination. This agreement may be terminated at the request of either party upon six
months written notice. Should the District elect to terminate this Agreement, it is agreed
that the District will pay the City (a) a proportionate amount of costs the City expended
on the Project pursuant to this Agreement, based upon the difference between the normal
expected life of the equipment installed and its unused life plus (b) the cost of initial
construction and installation prorated based upon the unexpired term of this Agreement at
the time of destruction. Furthermore, both the City and the district have the right to
terminate this Agreement immediately upon written notice to the other party if the other
party commits a breach of this Agreement, though the failure of the other party to comply
with any provision hereof.
5.03 Force Maicure. 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
Interlocal Agreement, Page 5
shall give notice and full particulars of such force majeure to the other party. The term
"Force Majeure," as used herein, shall include, without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to
machinery, pipelines or canals, partial or entire failure of water supply, and any other
inabilities of either Party, whether similar to those enumerated or otherwise, which are
not within the control of the party claiming such inability, and which such party could not
have avoided by the exercise of due diligence and care.
VI.
GENERAL PROVISIONS
6.01 Release.
(a) By this Agreement, the City does not consent to litigation and expressly revokes
any consent to litigation that it may have granted by the terms of this Agreement,
any charter, or applicable state law. The District hereby releases, relinquishes,
and discharges the City, its officers, agents and employees from all claims,
demands, and causes of action of every kind and character, including the cost of
defense thereof, for any injury to or death of any person (whether they be either of
the parties hereto, their employees, or other third parties) and any loss of or
damage to property (whether the property be that of either of the parties hereto,
their employees, or other third parties) that is caused by or alleged to be caused
by, arising out of, or in connection with the Project. This release includes the cost
of defense of any claim and any loss of or damage to property (whether property
of the parties or of third parties) that is caused by or alleged to be caused by,
arising out of, or in connection with the Project whether or not said claims,
demands, and causes of action are covered in whole or in part by insurance.
(b) By this Agreement, the District does not consent to litigation and expressly
revokes any consent to litigation that it may have granted by the terms of this
Agreement, any charter, or applicable state law. The City hereby releases,
relinquishes, and discharges the District, its officers, agents and employees from
all claims, demands, and causes of action of every kind and character, including
the cost of defense thereof, for any injury to or death of any person (whether they
be either of the parties hereto, their employees, or other third parties) and any loss
of or damage to property (whether the property be that of either of the parties
hereto, their employees, or other third parties) that is caused by or alleged to be
caused by, arising out of, or in connection with the Project. This release includes
the cost of defense of any claim and any loss of or damage to property (whether
property of the parties or of third parties) that is caused by or alleged to be caused
Interlocal Agreement. Page 6
by, arising out of, or in connection with the Project whether or not said claims,
demands, and causes of action are covered in whole or in part by insurance.
6.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
the City and District hereby agree that no claim or dispute between the City and District
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, District consents to be joined in
the arbitration proceeding if District's presence is required or requested by the City for
complete relief to be recorded in the arbitration proceeding.
6.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or
waive the sovereign immunity of the City or the District.
6.04 Notice. Any notice permitted or required to be given in this Agreement to the District
shall be given by registered or certified United States Mail, postage paid, return receipt
requested and addressed to the District, Attention: Superintendent of Schools at 4544 I-
10, 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, 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.
6.05 Independent Contractor. The relationship between the District and the City shall be that
of an independent contractor.
6.06 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the
parties hereto and shall not be construed to confer any rights upon any third party.
Neither party shall ever be subject to any liability in damages to any customer or
contractor of the of the other party for any failure to perform its obligations under this
Agreement.
6.07 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.
6.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
6.09 Choice of Law, Venue. This Agreement shall be construed under an in accordance with
the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Harris County, Texas.
Interlocal Agreement, Page 7
6.10 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.
6.11 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.
6.12 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.
6.13 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.
6.14 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.
6.15 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.
6.16 Assignment. Neither party to this Agreement may assign their rights duties or interests
without first obtaining the written consent of the other party.
6.17 Authorily. 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.
6.18 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
6.19 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.
Interlocal Agreement, Page 8
IN WITNESS \VI- II:REOF, A C undersigned District and the Cit\ hereto execute this
\greement on this —Z day of' ,_nal_y 201 5.
GOOSE CRI- EK CONSOLIDATED
INDEPFNDFNT SCI IOOI_ DISTRICT
(/ . l I �, -
Jim V-S mtt �.V r ` ident of the Board
Qr r es
AITESI:
i lu
Vi -v IVlelo. Secretar\' of the Board
ori- rustecs
C I I Y Or BA)' *I- O\\' \. 'I'l:XAS
Stephen H. DonCarlos. iMayor
ATITST:
Leticia Bryseh. City Clerk
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Interlocal Agreement. Page 9
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