Ordinance No. 12,914ORDINANCE NO. 12,914
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 STANMORE /ADEF BAYTOWN, LP, FOR A WATERLINE
EXTENSION AND ABANDONMENT PROJECT AND A LIFT STATION
UPGRADE PROJECT; 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
Stanmore/ADEF Baytown, LP, for a waterline extension and abandonment project and a lift
station upgrade project. 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. /J
INTRODUCED, READ and PASSED by the affirmative vote the City Council of the
City of Baytown this the 23`d day of July, 2015.
ATT T:
LETICIA BRYSCH, City Jerk
APPROVED AS TO FORM:
CW4NACIO RAMIREZ, SR., ' y Attorney
HEN H. DONCARLOS, Mayor
R:' KarenTiles'City Council Ordinances\2015Uuly 23 CostShareWaterlineExtension& LiftStationUpgmdeProjectwithStanmore- ADEFBaytown.doc
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
STANMORE/ADEF BAYTOWN, LP, a Texas limited partnership ( "DEVELOPER "), whose
address for purposes hereof is 675 Bering Drive, Suite 860, Houston, TX 77057.
W ITNESSETH:
I.
Project Descriptions
The "Project" will consist of the Waterline Extension and Abandonment Project as well
as the "Upgrade Project," which are described as follows:
a. Waterline Extension and Abandonment Proiect. Subject to and upon the terms,
provisions and conditions hereinafter set forth, the parties agree that the CITY
will (i) extend the eight -inch (8 ") waterline 50 feet along Eastpoint Blvd, to
connect it to the existing waterline along IH -10 Frontage Road and (ii) abandon
the existing twelve inch (12 ") water line with a mechanically retrained blind
flange at the south end by IH -10 North Frontage Road, and (iii) make street
repairs if the street is damaged by the work contemplated by this project (the
"Extension and Abandonment Project ").
b. Upgrade Project. Subject to and upon the terms, provisions and conditions
hereinafter set forth, the parties hereto agree that the CITY will reconstruct the lift
station and the upsizing of the force -main, including expanding the wet well,
upsizing the pumping system, installing new controls and Supervisory Control &
Advisory Data Acquisition ( "SCADA "), and building a parallel larger force main
along I- 10, from the lift station site to a manhole in the vicinity of I -10 and Wade
Road (the "Upgrade Project ").
II.
Project Oblieations
2.1 Extension and Abandonment Project. In general, the Extension and Abandonment Project
entails (i) the extension of the eight -inch (8 ") waterline approximately 50 feet along
Eastpoint Blvd, to connect it to the existing waterline along IH -10 Frontage Road, as
shown on Exhibit "A," which is attached hereto and incorporated herein for all intents
and purposes; and (ii) the abandonment of the existing twelve inch (I2 ") water line with a
Cost -Share Agreement. Page l
mechanically retrained blind flange at the south end by IH -10 North Frontage Road. The
Extension and Abandonment Project includes, but is not limited to the use of C900 PVC
pipe, T- connection, mechanical restraint, tapping sleeve, and gate valve, as well as the
restoration of concrete and sodding.
a. Obligations. The following are the responsibilities of the parties concerning the
Extension and Abandonment Project:
1. Within thirty (30) calendar days of the effective date of this Agreement,
Developer shall pay the CITY a lump sum amount of FORTY
THOUSAND AND NO /100 DOLLARS ($40,000.00) as its contribution
towards the Extension and Abandonment Project.
2. The CITY agrees that it will in its sole discretion and at its own cost and
expense, engage or otherwise cause a professional engineer licensed in the
State of Texas to design the Extension Project.
3. Provided the CITY has received the lump sum payment from Developer
for the Extension and Abandonment Project, the CITY, in its sole
discretion, shall:
(a) advertise for bids in accordance with law and enter into a contract
with the lowest responsible bidder to construct the Extension and
Abandonment Project,
(b) shall issue a work order under an existing contract for similar work
in order to construct the Extension and Abandonment Project, or
(c) shall cause its Public Works Department to construct the Extension
and Abandonment Project.
4. Upon request, the CITY shall provide an update on the status of the
Extension and Abandonment Project to DEVELOPER.
5. It is expressly understood by the parties, that the CITY shall have the
obligation to provide services as specified herein regardless of the stage of
completion of this project only if DEVELOPER has made all requisite
payments specified herein and is otherwise in compliance with this
Agreement.
6. The parties understand and agree that the CITY will endeavor to have the
design and construction of the Extension and Abandonment Project
completed within ninety (90) days of the CITY's receipt of
DEVELOPER's lump sum payment for such project.
b. Title. The legal title to the Extension and Abandonment 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 Extension Project
during or after construction.
C. Abandonment. Should DEVELOPER desire for the CITY to abandon the existing
twelve -inch (12 ") waterline easements, DEVELOPER must submit a petition and
Cost -Share Agreement, Page 2
follow the process therefor in accordance with Chapter 2, Article VII of the Code
of Ordinances, Baytown, Texas.
2.2 Upgrade Project. In general, the Upgrade Project entails the reconstruction of the lift
station and the upsizing of the force -main, including expanding the wet well, the upsizing
of the pumping system, the installation of new controls and SCADA, and the building of
a parallel larger force main along 1 -10, from the lift station site to a manhole in the
vicinity of 1 -10 and Wade Road (approximately 4,900 ft), as shown on Exhibit "B,"
which is attached hereto and incorporated herein for all intents and purposes.
a. Obligations. The following are the responsibilities of the parties concerning the
Upgrade Project:
1. Within thirty (30) calendar days of the effective date of this Agreement,
Developer shall pay the CITY a lump sum amount of EIGHTY -THREE
THOUSAND AND NO /100 DOLLARS (583,000.00) as its contribution
towards the Upgrade Project.
2. It is expressly understood by the parties, that the CITY shall have the
obligation to design and construct the Upgrade Project if DEVELOPER
has made the requisite payments specified herein and is otherwise in
compliance with this Agreement.
b. Title. The legal title to the 1 -10 John Martin Lift Station 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 1 -10 John Martin
Lift Station Project during or after construction.
2.3 Capacity Reserved
a. Water. CITY shall reserve 33,700 gallons per day of capacity for providing water
service to 283 multifamily units on DEVELOPER's property; however, it is
expressly understood and agreed that CITY shall have no obligation to provide
water service to DEVELOPER until after the CITY has completed and accepted
the Extension and Abandonment Project.
b. Wastewater. CITY agrees to reserve capacity for providing DEVELOPER
wastewater service commensurate with the water capacity reservations
hereinabove.
Cost -Share Agreement, Page 3
III.
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 CITY.
IV.
General Provisions
4.1 Non - Waiver. Failure of CITY to declare any default immediately upon occurrence
thereof, or delay in taking action in connection therewith, shall not waive such default,
but 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
(a) By DEVELOPER. If DEVELOPER is in default of this Agreement, then 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.
(1) DEVELOPER fails to timely perform 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 to 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;
(2) 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
(3) DEVELOPER makes any assignment of this Agreement not permitted in
Section 4.7 without the written approval of CITY.
Should CITY terminate this Agreement for DEVELOPER's default, 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, CITY shall be
entitled to seek all other relief which may be allowed by law.
Cost -Share Agreement. Page 4
(b) By CITY. If CITY is in default of this Agreement prior to commencement of the
Extension and Abandonment Project or the Upgrade Project, then DEVELOPER
shall have the right to declare CITY in default and terminate the Agreement after
the CITY's receipt of notice and an opportunity to cure. CITY is in default of this
agreement if:
(1) CITY fails to perform any obligation imposed upon CITY hereunder and
does not cure the default within thirty (30) days (unless another period of
time is specified herein) after written notice describing the default in
reasonable detail has been given to CITY or, if the default cannot
reasonably be cured within the thirty (30) day period, if CITY does not
commence curative work within the thirty (30) day period and prosecute
the work to completion with diligence; or
(2) CITY makes an assignment of this Agreement not contemplated herein
without the written approval of DEVELOPER.
Should DEVELOPER terminate this Agreement for CITY'S default,
DEVELOPER will be relieved of its obligations hereunder and as its sole and
exclusive remedy shall be entitled to a refund of any monies provided to CITY
and not expended or encumbered by CITY as of the date of termination.
4.3 Remedies Cumulative. All rights and remedies of 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, CITY does not consent to litigation or suit, and 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 CITY's
sovereign immunity. DEVELOPER assumes full responsibility for its obligations under this
Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds
harmless 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.
Cost -Share Aereement. Page 5
4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
CITY and DEVELOPER hereby agree that no claim or dispute between 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 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 CITY for complete relief to be recorded in the
arbitration proceeding.
4.7 Assignment. DEVELOPER shall not assign this Agreement without first obtaining the
written consent of CITY; provided that nothing herein shall be construed to prevent
DEVELOPER from assigning this agreement to its construction lender as security for the
development of its project associated with this Agreement.
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
Stanmore/ADEF Baytown, LP
Attn: General Partner
675 Bering Drive, Suite 860
Houston, TX 77057
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 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.
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.
Cost -Share Agreement. Page 6
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 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.
EXECUTED ON this the day of , 20_ (the "Effective
Date ").
CITY OF BAYTOWN
ATTEST:
LETICIA BRYSCH, City Clerk
Cost -Share Agreement, Page 7
RICHARD L. DAVIS, City Manager
APPROVED AS TO FORM:
IGNACIO RAMIREZ. SR.. City Attorney
EXECUTED ON this the day of
JEANINE DELAY MOURET
MY COMMISSION EXPIRES
October 19, 2016
STANMORE /ADEF BAYTOWN. LP
BY ITS GENERAL PARTNER
STANIVIORE GPBT. LLC
(Sig re)
C MA �,j (J. r1 �j
(Printed Name)
T 2 ii,-' sT
(Title)
STATE OF TEXAS
COUNTY OF &
Before me. ALlLZ21, ), /U Elf the undersigned nowry public. on this day personally
appeared .— /V1 clg p? . the 62nt- id&gIt of Stanmore
GPBT. LLC. the General Partner Stanmore/ADEF Baytown. LP, on behalf• of such limited
partnership
s known to me.
proved to me on the oath of : or
proved to me through his her current
,description of identilication card or other document issued b,, the federal
(?o %emnient or anN state government that contains the photograph and signature of-
the ackno%%ledging person;
(check one)
to be the person %%hose name is subscribed to the fore�,oing instrument, and acknox%ledged to me
that he she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal ofof�tice this /Sr day of' 114 )-1 20 Ar
Mary Public in and far the State of
Texas
fly commission expires:
Cost -Share .Aareement. Pa,-,c 8