Ordinance No. 12,861ORDINANCE NO. 12,861
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE ACTING CITY MANAGER TO EXECUTE
AND THE CITY CLERK TO ATTEST TO A COST -SHARE AGREEMENT
WITH ALDI (TEXAS) LLC, FOR THE INSTALLATION OF A FOUR -WAY
TRAFFIC SIGNAL AT THE INTERSECTION OF SOUTH ROAD AND
GARTH ROAD; 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 Acting City Manager to execute and the City Clerk to attest to a Cost -Share Agreement with
Aldi (Texas) LLC, for the installation of a four -way traffic signal at the intersection of South
Road and Garth 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 and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative
City of Baytown this the 14th day of May, 2015.
AT EST:
eh L C0.7
L ICIA BRYSCH, Ci Jerk v-.. ' j
APPROVED AS TO FORM:
I
ACIO RAMIREZ, SR., it Attorney
R ,Karen\Files'.City CounciROrdinances\2015Way 14 \CostShareSigna1Project.doc
the City Council of the
Mayor
Exhibit "A"
COST -SHARE AGREEMENT
THE STATE OF TEXAS
COUNTY OF CHAMBERS
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
ALDI (TEXAS) LLC, a Texas limited liability company ( "DEVELOPER "), whose address for
purposes hereof is 2500 Westcourt Road, Denton, TX 76207.
WITNESSETH:
1.
1.1 Project. Subject to and upon the terms, provisions and conditions hereinafter set forth,
the parties hereto agree that CITY will install a four -way traffic signal at the intersection
of South Road and Garth Road in the City of Baytown, Harris County, Texas (the
"Project "). The Project shall meet CITY specifications and shall include, but not be
limited to spread spectrum antenna, luminaires, traffic signal heads, mast arms, overhead
signs, controller cabinet and components, ground boxes, service poles, detection pods,
conduits, removal of existing pavement markings, proposed striping, pedestrian buttons
and signal heads, pedestal poles, and ADA accessible ramps.
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 Project 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 ten (10) 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
the Project to meet CITY specifications.
Cost -Share Agreement, Page I
(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 two- thirds
(2 /3`ds) of the engineer's estimate of the construction of the Project. 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 two -
thirds (2 /3`ds) of the bid of the lowest responsible bidder received for the Project,
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 two- thirds (2 /3`ds) of the bid
of the lowest responsible bidder received for the Project, 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 or Acting 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 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.
(h) After final completion of the Project, if monies are owed by DEVELOPER to the
CITY, DEVELOPER shall pay the CITY the amount due within ten (10) days of
receipt of an invoice from the CITY. It is expressly understood and agreed that
Cost -Share Agreement, Page 2
DEVELOPER's share of the Project shall be two- thirds (2 /3rds) the actual Project
cost.
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 DEVELOPER in accordance with Section 2. Lc and after receipt of the deposit
required by Section 2. Ld, the CITY shall be obligated to advertise for bids for the
construction of the Project 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 by October 1,
2015; provided, however, in the event that the Project is not completed or
operational by October 1, 2015, the CITY shall install a temporary four -way
operational traffic signal at the Project site. DEVELOPER agrees that the CITY
shall not be deemed to be in default hereof so long as the temporary four -way
operational traffic signal at the Project site is installed by October 1, 2015
(b) Upon request, the CITY shall provide an update on the status of the Project to
DEVELOPER.
(c) After the receipt of the funds by the CITY that are required to be tendered by
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. Alternatively, if monies are owed by
DEVELOPER to the CITY, the CITY shall invoice DEVELOPER the amount
due so that DEVELOPER's share of the Project is two- thirds (2 /3`as) the actual
Project cost.
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.
Cost -Share Agreement. Page 3
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,
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.
Cost -Share Agreement, Page 4
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,
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 Assi ment. 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
ALDI (TEXAS) LLC
Attn: Vice President
2500 Westcourt Road,
Denton, TX 76207
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.
Cost -Share Agreement, Page 5
4.10 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to
all applicable federal, state and local laws and regulations, and all judicial determinations
relative thereto.
4.11 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the
terms thereof shall be construed according to the laws of the State of Texas. The place of
making and the place of performance for all purposes shall be Baytown, Harris County,
Texas.
4.12 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 A eg_r ement. This Agreement contains the entire understanding and constitutes the
entire agreement between the parties hereto concerning the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings, oral or written,
express or implied, between or among the parties hereto, relating to the subject matter of this
Agreement, which are not fully expressed herein.
4.14 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a
number of identical counterparts each of which shall be deemed an original for all purposes.
4.15 Headings. The headings and subheadings of the various sections and paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not express or imply
any limitation, definition, or extension of the specific terms of the section and paragraph so
designated.
4.16 Gender and Number. The pronouns of any gender shall include the other genders, and
either the singular or the plural shall include the other.
4.17 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this
Agreement, or application thereof to any person or circumstance is held invalid by any court
of competent jurisdiction, such holding shall not affect the validity of the remaining portions
of this Agreement, and the parties hereby declare they would have enacted such remaining
portions despite any such invalidity.
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
From:
EXECUTED ON this the _ day of
Date ").
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
EXECUTED ON this the _ day of
STATE OF G{5 §
COUNTY OF rr C, §
05/14/2015 13:56 #124 P 007 /008
20_ (the "Effective
CITY OF BAYTOWN
By:
RON BOTTOMS, Acting City Manager
ALDI (TEXAS) LLC
B QjSign re)
e
(Printed Name)
(Title)
20
Before me, t -k y �Ct5ior) �, the undersigned notary public, on this day personally
appeared r q , the l.%! V &&L4 Vrt of ALDI
(TEXAS) LLC, on behalf of such limited liability company
4— known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he /she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this �-i� day of Mct , 20)S'
�;. "; •r4 o CHRISTINE MARIE PRESTON Notary Public in and for the State of
�F Notary Public. Stote of Texes
r T� My Commission Expires
'•,a;, February 21, 2014 My commission expire s: to al ,0018)
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Cost -Share Agreement, Page 8