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Ordinance No. 13,052ORDINANCE NO. 13, 052 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 A GRANT AGREEMENT WITH ALLEN E. (GENE) RUSSELL, LORETTA RUSSELL, AND THE GENE AND LORETTA RUSSELL FOUNDATION FOR THE DONATION OF FUNDS FOR PARK PURPOSES; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** 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 a Grant Agreement with Allen E. (Gene) Russell, Loretta Russell, and The Gene and Loretta Russell Foundation for the donation of funds for park purposes. A copy of the agreement is attached hereto as Exhibit "A" and is 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 affirmati vote of the City Council of the City of Baytown this the 10th day of December, 2015. ATTE ETICIA BRYSCH, City erk APPROVED AS TO FORM: eTCfNACIO RAMIREZ, SR., 1 Attorney Ole) 21 � ,rt- • • V _1y �Y� l� RAKarenTiles -City Council Ordinances\2015\December 10'•, RussellDonationGran tAgreement.doc Mayor Exhibit "A" GRANT AGRE 3VffN T WHEREAS, in 2015, Allen E. (Gene) and Loretta Jean Russell established The Gene and Loretta Russell Foundation, a Texas nonprofit trust, for charitable, medical, scientific, literary, religious and educational purposes, including the support of organizations engaged in civic activities and providing recreational opportunities to citizens; and WHEREAS, Allen E. (Gene) and Loretta Jean Russell, together with The Gene and Loretta Russell Foundation, individually and collectively, shall hereinafter be referred to as the "Donor"; and WHEREAS, the City of Baytown is a duly organized political subdivision of the State of Texas, and shall be collectively be referred to as the "City "; and WHEREAS, the Donor desires to contribute to the City ONE MILLION AND NO /100 DOLLARS ($1,000,000.00) (in cash or marketable securities or a combination of both) to support (i) the construction of a park located near Wallisville Road and North Main Street, as more particularly described in Schedule `B," which is attached hereto and incorporated herein for all intents and purposes, and (ii) the possible acquisition of adjacent property for the expansion of such park (collectively the "Park "); and WHEREAS, the City, in gratitude and appreciation to the Donor for its contribution and in consideration of the benefit to the City, desires to provide certain naming rights to the Park, subject to the terms and conditions set forth herein; NOW, THEREFORE, for the mutual consideration and covenants contained herein, the Donor and the City enter into this Agreement and do hereby agree as follows: 1. The Donor promises and agrees to pay to City ONE MILLION AND N01100 DOLLARS ($1,000,000.00) (the "Contribution ") over three (3) calendar years in the amounts and on the dates described in Schedule "A," which is attached hereto and incorporated herein for all intents and purposes. 2. The City agrees that in consideration of and in gratitude and appreciation for the Contribution, the City will dedicate the Park in honor of Gene and Loretta Russell and will acknowledge that the Donor is making this Contribution in reliance on certain representations made to the Donor regarding the Park. Therefore, if the ultimate designs, plans, or specifications of the Park or the equipment used in the operation of the Park are not substantially the same as portrayed to the Donor and as specified in Schedule "C," which is attached hereto and incorporated herein for all intents and purposes, after 30 days' notice of such failure and a reasonable opportunity to cure, such failure shall be considered a breach of this Agreement subject to those remedies for breach specified in paragraph 23 of this Agreement. 3. Subject to applicable City ordinances, City agrees that the Park will be clearly identified as The Gene and Loretta Russell Park by appropriate signage along Wallisville Road and North Main Street and any future roads, as agreed upon by Donor and City and other points of access to the Park. Grant Agreement. Page 1 4. The City agrees at all times to maintain in good condition and repair any of the signage identifying The Gene and Loretta Russell Park and any of the equipment and facilities located in said Park. 5. The City agrees to use all reasonable efforts to (1) cause any and all announcements relating to the Park in print or broadcast media to be referred to as The Gene and Loretta Russell Park and (2) identify the Park as The Gene and Loretta Russell Park in all official documents, press releases, public announcements and communications and other promotional, advertising or other materials disseminated to the public. The City will reasonably cooperate with the Donor in accommodating the methods of identification including, but not limited to, playgrounds, pavilions, adjoining access streets to and within the park, trails, and/or activity areas within the Park, desired by the Donor with respect to all naming rights provided in this Agreement. 6. In the event of any conflict between the requirements of this Agreement and the City's naming guidelines or other City applicable regulations, policies or procedures, the requirements of this Agreement shall control. 7. The City agrees that the Contribution shall be used to support the municipal purposes for which City was established. Within those guidelines, the City shall have the sole discretion to determine how the Contribution shall be utilized. The City, however, agrees to provide the Donor with audited financial statements within 180 days of the end of the applicable calendar year to which they relate and with a brief narrative description of the purpose or purposes for which the Contribution was used ( "Reports "). Reports shall be provided annually for as long thereafter as the parties reasonably agree as is necessary to comply with any applicable laws or regulations. The City agrees no portion of the Contribution shall be used (1) for carrying on propaganda or otherwise attempting to influence legislation, (2) for participating in, or intervening in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office, or (3) for the private benefit of any private shareholder or individual (except for the payment of reasonable compensation for services rendered). 8. The parties hereto agree that nothing contained herein is intended to create a partnership or joint venture between any of the parties hereto. The parties further agree that nothing contained herein is intended to entitle any party hereto to participate in any way in the governance or operations of any other party hereto or create any fiduciary duties or fiduciary relationship between the parties. 9. The City represents, warrants, and covenants that it is a political subdivision and a governmental entity under the laws of the State of Texas so that it is (1) exempt from U.S. federal income taxation under section 170(c)(1) of the Internal Revenue Code of 1986, as amended (herein all section references are to the "Code ") and (2) not a private foundation described in section 509(a) of the Code. The City represents, warrants and covenants that it will notify the Donor of any change in its status during the term of this Agreement. 10. The City hereby releases, relinquishes, and discharges the Donor 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 and any loss of or damage to property that is caused by or alleged to be caused by, arising out of, or in connection with the Park. This release includes the cost of defense of any claim and any loss of or damage to property that is caused by or alleged to be caused by, arising Grant Aereement, Page 2 out of, or in connection with the Park whether or not said claims, demands, and causes of action are covered in whole or in part by insurance. 11. The covenants of the City in this Agreement are ministerial and the Donor can enforce the obligation of the members of the governing body of City to carry out the covenants hereunder by mandamus. 12. The remedies of the parties under this Agreement are cumulative, and none of which shall be exclusive, and shall be in addition to any other rights or remedies contained in this Agreement or any other document or instrument. 13. By signing this Agreement below, the City agrees that the Contribution will be used in compliance with all applicable anti - terrorist financing and asset control laws, regulations, rules and executive orders, including but not limited to, the USA Patriot Act of 2001 and Executive OrderNo. 13224. 14. Any notice, request, claim, demand, document and other communication hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by facsimile, certified or registered mail, or express mail, Postage prepaid, as follows: If to the Donor: Mr. Allen E. (Gene) Russell, If to the City• Loretta Jean Russell, and City of Baytown The Gene and Loretta Russell Foundation 2 401 City Manager 2401 Market Street 5919 Southern Hills Drive Houston, TX 77069 Baytown, TX 77520 281- 444- 7559(fax) 281- 420 -6586 (fax) or at any other address as any party shall have specified by notice in writing to the other affected party or parties. 15. Each party represents that it has all the requisite power and authority to enter into this Agreement and to perform its obligations under this Agreement. The execution and delivery of this Agreement has been duly authorized by all necessary action, and no consent of any other party, governmental unit or agency, or court is necessary. The individual executing this Agreement on behalf of the party has the requisite authority to execute this Agreement and bind the Ply. The performance or observance of any of the matters or things herein provided does not contravene any provision of law or any enabling legislation of the parties or any covenant, indenture or agreement of or affecting the parties or any of their property. 16. This Agreement constitutes the entire Agreement between the parties and supersedes all previous communications with respect to the subject matter of this Agreement. 17. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties. Grant Agreement, Page 3 18. Notwithstanding any other provisions with this agreement, it is understood that the naming rights granted to the Donor by the City, concerning the Park shall be exclusive and in perpetuity. This will include future additional adjacent property, if any, to be added to the Park. 19. This Agreement may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one instrument. 20. This Agreement shall be governed by and construed under the laws of the State of Texas without giving effect to that body of laws pertaining to conflict of laws. Venue shall be limited to the courts of competent jurisdiction located in Hams County, Texas. 21. No amendment, modification or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by all of the parties hereto. 22. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 23. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 24. A party is not liable for failure to perform its obligations under this Agreement if such failure is as a result of Force Majeure. For purposes herein, "Force Majeure" shall mean labor disturbances, riots, fires, earthquakes, floods, storms, lightening, epidemics, war, disorders, hostilities, expiration or confiscation of properties, a default of any bonds, failure of and delays by carriers, interference by civil or military authorities, whether legal or de facto and whether purporting to act under some constitution, decree or law, or otherwise, acts of God, and all similar acts and occurrences beyond the reasonable control of the party. If a party asserts Force Majeure as an excuse for failure to perform its obligation under this Agreement, then the nonperforming party must prove (1) that the party took reasonable steps to minimize delay or damages caused by foreseeable events, (2) that the party substantially fulfilled all non - excused obligations, (3) that the other party was timely notified of the likelihood or actual occurrence of the event of Force Majeure, and (4) that the nonperforming party will thereafter, make all reasonable efforts to perform its obligations under this Agreement in a timely matter. Notwithstanding anything in this Agreement to the contrary, if the City of Baytown is the nonperforming party, the Donor shall not be required to make any additional installment payments of the Contribution until such time as the City of Baytown's obligations under this Agreement have been performed. Grant Agreement, Page 4 Executed and effective as of this day of December, 2015. ALLEN E. (GENE) AND LORETTA JEAN RUSSELL and THE GENE AND LORETTA RUSSELL FOUNDATION Allen E. (Gene) Russell By: Loretta Jean Russell STATE OF TEXAS § Individually and as Co- Trustees of the Foundation COUNTY OF HARRIS § The foregoing instrument was acknowledged before me on this _ day of , 2015, by Allen E. (Gene) Russell, individually and as Co- Trustee of The Gene and Loretta Russell Foundation, for the purposes and consideration herein expressed. [ SEAL ] Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF HARRIS § The foregoing instrument was acknowledged before me on this _ day of , 2015, by Loretta Jean Russell, individually and as Co- Trustee of The Gene and Loretta Russell Foundation, for the purposes and consideration herein expressed. [SEAL] Notary Public in and for the State of Texas Grant Agreement, Page 5 THE CITY OF BAYTOWN Lm ATTEST: : Leticia Brysch, City Clerk Grant Agreement, Page 6 Stephen IT DonCarlos, Mayor SCHEDULE A Contribution Payment Amounts and Payment Dates Installment First Installment Amount Payment Date $333,333.34 Second Installment $333,333.33 Third Installment $333,333.33 SCHEDULE B V. VJ in (1) 4=4 75 "--4 rl:j bA 064 Of) Cd 0 SCHEDULE C Designs, Plans, and Specifications of Russell Park and Equipment Specifications of Russell Park The designs, plans and specifications of the Russell Park and the equipment specifications of the Russell Park are as agreed by and among Mr. Gene Russell, Scott Johnson, and Dustin Shubert, as more particularly depicted as follows: WalrGroi[% 9v.