Ordinance No. 13,265ORDINANCE NO. 13,265
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 COST -SHARE AGREEMENT WITH
CHAMBERS COUNTY LOGISTICS TERMINAL, LP; MAKING OTHER
PROVISIONS RELATED THERETO; 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 Cost -Share Agreement with
Chambers County Logistics Terminal, LP. 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 vo, of the City Council of the
City of Baytown this the 25th day of August, 2016. '
ATTEST:
b IA BRYSCH, City rk
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., i Attorney
. DONCARLOS, Mayor
........�1 dl
�
'• to
*4 41X6
O�
R:',Karen \Files'lcity CoundhOrdinances\2016\August 251CostShareAgreementwithChambersCountyLogistics .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 I larris and Chambers Counties. Texas
( "CITY "). whose address for purposes hereof is P.O. Box 424. Baytown. Texas 77522, and
Chambers County Logistics Terminal, LP (CCLT), whose address for purposes hereof is P.O.
Box 1356. La Porte, TX 77572 -1356.
W ITNESSETI I:
1.1 Proiect. Subject to and upon the terms, provisions and conditions hereinafter set forth.
the parties hereto agree that CCLT will increase the size and capacity of the eater and
wastewater infrastructure proposed to be constructed by CCLT along FM 565 from the
end of the public line being constructed along FM 565 bN Chambers Count
Improvement District No. 2 to Ameriport Parkway, as more particularly depicted in
Exhibit "A" which is attached hereto and incorporated herein for all intents and
purposes."' from a six -inch (6 ") force main to an eight -inch (8 ") force main and from a
twelve -inch (12 ") water line to a sixteen -inch (16 ") water line to meet CITY
specifications (the "Project ").
2.1 CCLT's Obligations. In addition to CCL1's obligations elsewhere in this Agreement.
CCLT shall have the following obligations:
(a) Proiect.
(1) CCLT agrees that it will at its ow n cost and expense engage one or more
professional engineers to design the Project.
(2) CCLT agrees to design the Project to comply with all laws. rules or
regulations of applicable governmental authorities, in order to make the
lines described hereinabove meet or exceed the quality standards set bN
applicable governmental authorities.
(3) CCLT shall be obligated to submit plans and specifications for the
construction of the Project (the "Plans and Specifications ") to the Cif.
Engineer, for approval and'or for required recision and approNal bN the
City Engineer, within thirty (30) days alter the I_fl'ective Date of this
Agreement. if it has not alreadN done so at the time of execution of this
Cost -Share Agreement. Page I
Agreement. CCLT agrees that the plans and specifications shall include
the construction and installation of an eight -inch (8 ") diameter force main
together with the construction and installation of a sixteen -inch (16 ")
diameter water line to meet CITY specifications.
(4) After the City Engineer's final approval of the plans and specifications
submitted by CCLT, CCLT shall be obligated to enter into a contract for
the construction of an eight -inch (8 ") force main and a sixteen -inch (16 ")
water line over the length of the Project in accordance with all applicable
laws and the plans and specifications approved by CITY.
(5) Throughout the term of this Agreement, CCLT shall comply and shall
cause its contractor to comply with the following insurance and bonding
requirements:
a. Insurance.
1. CCLT'S Insurance. From the Effective Date and
throughout the Term of this Agreement, CCLT will keep
and maintain, or cause to be kept and maintained, in force
and effect insurance as specified herein. CCLT's insurance
coverage shall be primary insurance with respect to CITY,
its officials, employees and agents, who shall be named as
additional insureds. Any insurance or self - insurance
maintained by CITY, its officials, employees or agents
shall be considered in excess of CCLT's insurance and
shall not contribute to it.
The following is a list of standard insurance policies along
with their respective minimum coverage amounts required
in this Agreement to be maintained by CCLT during the
term hereof:
• Commercial General Liability
General Aggregate: $2,000,000
D Per Occurrence: $1,000,000
➢ Coverage shall be at least as Broad Form
CGL
➢ No coverage shall be deleted from standard
policy without notification of individual
exclusions being attached for review and
acceptance.
D Waiver of Subrogation required.
Workers' Compensation Insurance
> Employer's Liability: $1,000,000
➢ Waiver of Subrogation required
Cost -Share Aereement, Page 2
Cost -Share Aereement. face 3
CCLT_'s C_ontractor's Insurance. CCLT shall cam or
require its general contractor to cam in full force and
effect insurance coverages of the type and limits as
required hercinbelow throughout the term of this
Agreement. CCLT shall include or shall require its general
contractor to include all subcontractors as additional
insured under its policies or shall furnish separate
certificates and endorsements for each subcontractor. All
coverages I'or the general contractor and subcontractors
shall be subject to all of the requirements stated
hereinbelow:
Commercial General Liability
General Aggregate: $2,000.000
Per Occurrence: $1,000.000
.- Products & Completed Operations
Aggregate: $1,000,000
0%%ners' and Contractors' Protective
Liability: $1.000,000. during construction
and all renovations thereafter of the Property
Improvements.
Personal & Advertising Injury: $1,000,000
Coverage shall be at least as Broad Form
CGL
No coverage shall be deleted from standard
policy without notification of individual
exclusions being attached for review and
acceptance.
Waiver of Subrogation required.
Business Automobile Polio (BAP)
Combined Single Limits: $2.000,000
Coverage for `An1 Auto."
Workers* Compensation: Statutory Limits
Employer's Liability: $1.000.000
Waiver of Subrogation required
Prior to any work being performed. CCLT shall file with
CITY valid Certificates of Insurance and endorsements
acceptable to CITY for the general contractor and each of
its subcontractors.
The follo%%ing shall be applicable to all policies of
insurance required herein:
• Insurance carrier must have an AN. Best Rating of
A: VI or better.
• Only insurance carriers licensed and admitted to do
business in the State orTcxas v% ill be accepted.
• Liability policies must be on occurrence form.
• Each insurance police shall be endorsed to state that
coverage shall not be suspended, voided, canceled
or reduced in coverage or in limits except after
thin) (30) days' prior vNritten notice by certified
mail, return receipt requested. has been given to
CITY.
• CITY and its officers and employees are to be
added as Additional Insured to liability policies.
• Upon request. and without cost to CfrY, certified
copies of all insurance policies and or certificates of
insurance shall be furnished to CITY.
• All insurance required under this section shall be
secured and maintained in a company or companies
satisfactorl to CITY.
b. Bonds. CCLT shall be required to obtain or cause its contractor to
obtain construction and payment bonds in accordance with Chapter
2253 ol'the 'Texas Government Code for 100% of the cost of the
Project with CITY listed as the beneficiary thereof. Additionally,
CCLT shall be required to obtain or cause its contractor to obtain a
maintenance bond for 100% of the cost of'the Project with CITY
listed as the beneficiary thereof.
(6) After CITY'S receipt and approval of the insurance and bonds required
hereinabove, CCLT'S contractor(s) will obtain all necessary permits for
and begin the construction of the Project in accordance v%ith the approved
plans and specifications and continue such construction efforts thereafter
in a diligent manner until the Project is completed and accepted by CITY.
CCLT shall complete and secure CITY'S acceptance of the Project v%ithin
one hundred eighty (180) calendar days from the City Engineer's approval
of the Plans and Specifications, unless such time is extended in writing b)
CITY. To the extent the Cl I'Y receives any payments under a payment.
performance. or maintenance bond. the CITY covenants to hold Such
funds in a segregated account for use in connection v%ith contractor
performance, payment, or maintenance of the Project. as applicable. and
for no other purpose.
(T) CCLT grants CITY the right at any time to inspect the Project as it is
constructed.
Cost -Share Amement. Page 4
(8) Upon request, CCLT shall provide to CITY an update on the status ol'the
Project and copies, free of charge, of inspection reports, testing reports,
certificates of substantial and final completion, and evidence of payment
regarding the costs of the Project.
(9) CCLT shall pay all costs and expenses of Project construction, including.
not by way of limitation, the costs of all materials, labor and equipment
used in connection with such construction and all license, permit or
inspection tees that may be charged in connection with such work.
(10) Within ten (10) days of CITY'S approval of the Project and prior to
CITY'S acceptance of the same, CCLT, without cost or expense to CITY.
shall convey title to the Project to CITY. in a form acceptable to the City
Attorney, and shall transfer all warranties and maintenance bond
obligations therefor to CITY. Once CCLT conveys title as described
hcreinabove, CCLT shall have no right or privilege to remove or interfere
with any part or portion of the facilities resulting from the Project, except
CCLT shall be allowed, subject to all applicable laws, rules and
regulations of CITY, including the payment of appropriate fees, to apply
for and obtain a water and sewer tap at the size and location as indicated
on the plans and specifications approved by the City Engineer.
(b) Capacity Reservation.
(1) CCLT will pay CITY a lump sum payment of THREE HUNDRED
FORTY -SEVEN THOUSAND ONE HUNDRED TWENTY -SEVEN
AND 50/100 DOLLARS ($347,127.50) within thirty (30) days of
execution of this Agreement for CITY'S commitment to reserve capacity
in accordance %%ith Section 2.2(b) of this Agreement. Such payment shall
be in addition to any other fee or payment required of CCLT to receive
utility service from CITY, including, but not limited to impact fees,
connection fees, and industrial district payments.
(2) Late payments shall accrue interest at the rate specified in Section
2251.025 of the Texas Goy ernment Code.
2.2 CITY's Obligations. In addition to CITY's obligations elseN%here in this Agreement,
CITY shall have the following obligations
(a) Project.
(1) The City Engineer must timely revie%% the plans and specifications
submitted by CCLT and shall thereafter approve the same only upon a
determination that the same meet all applicable requirements of CITY.
Cost -Share Augment. 11age 5
(2) CITY grants CCLT the privilege to use its easements and rights- of -%%ay
depicted in Exhibit "A" for the construction of the Project; provided that
the work in the casements and rights -of -wad is subject to all safety
requirements of CITY and all applicable laws. rules and regulations.
(3) After notice of completion, CITY shall inspect the Project to determine
compliance with the terms and conditions hereof and if in compliance
shall accept the conveyance of title from CCLT pursuant to Section
2.1(a)(10). Thereafter, CITY will own, operate and maintain the Project
within the public easements and-!or rights- of =wa).
(b) Capacity Reserved.
(1) Water. After CCLT conveys title to the Project to CITY and CITY
accepts the same. CITY shall reserve the following capacity for providing
water service to CCLT's property:
Capacity
I
15,000 gpd
2 -3 25.000 g d
4+ 50,000 g d
It is expressly understood and agreed that the City may reserve additional
water capacity to service CCLT's property at its sole option; however, the
City shall never be obligated to provide more than the amounts
hereinabove reserved. This reservation provision shall expire upon the
execution of a utility agreement between CITY and CCLT or between the
CITY and another entity, in its capacity as CCLT's tenant or designee.
(2) Wastewater. After CCLT conveys title to the Project to CITY and CITY
accepts the same, CITY agrees to reserve capacity for providing CCLT
waste%%ater service commensurate with the water capacity reservations
hereinabove. This reservation provision shall expire upon the execution of
a utility agreement between CITY and CCLT or bet%%cen the CITY and
another entit) in its capacity as CCL`T's tenant or designee.
II Tenn. Subject to and upon the terns 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 ofthe Project b) CITY.
Cost -Share Agreement. Page 6
IV.
4.1 Non - Waiver. failure of CITY to declare any defiuilt immediately upon occurrence
thereof, or delay in taking action in connection therc%%ith, 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 by CCLT. If CCLT is in default of this Agreement. then CITY shall have the
right to declare CCLT 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 la%%. CCLT is in default of this agreement if:
(a) CCLT fails to timely make payment as required herein and does not cure the
default within ten (10) days after written notice describing the default in
reasonable detail has been given to CCLT:
(b) CCLT fails to timely perform performance of an) obligation imposed upon CCLT
hereunder, not otherwise referenced in subsection (a) of this section, 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 CCLT or, if CCLT does not commence curative %work %within the thirty
(30) day period and prosecute the work to completion with diligence;
(c) CCLT institutes proceedings, %whether voluntary or otherwise, under the
provisions of the federal Bankruptcy Act or any other Iederal or state la%% relating
to bankruptcy or insolvency; or
(d) CCLT makes any assignment of this Agreement without the written approval of
CITY other than an assignment permitted under Section 4.7.
Should CITY terminate this Agreement for CCLT's default. CITY %%ill be relieved of its
obligations hereunder and CCLT 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. An) and all defaults declared by CITY shall be final and binding upon
CCLT.
4.3 Remedies Cumulative. All rights and remedies of CITY and/or CCLT under this
Agreement shall be cumulative and none shall exclude any other rights or remedies
allowwed by law%.
4.4 Amendments. This Agreement may not be altered, changed or amended, except b) an
instrument in writing. signed by both parties hereto.
4.5 Release. By this Agreement, CI rY 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
Cost -Share Aureement. Page 7
Agreement or any other contract or agreement, and charter, or applicable state lax%. Nothing
contained herein shall be construed in any %%ay so as to waive in whole or part CITY's
sovereign immunity from suit. Notwithstanding the foregoing, CITY acknowledges that its
sovereign immunity does not extend to liability for CITY's breach of any provision of this
Agreement or CITY's failure to perform its obligations under this Agreement.. CCLT
assumes full responsibility for its obligations under this Agreement and hereby releases,
relinquishes, discharges, and holds harmless CffY, 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
CCLT's N%ork to be performed hereunder. This release shall apply with respect to CCLT's
Nvork 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,
CITY and CCLT hereby agree that no claim or dispute between CITY and CCLT 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, CCLT consents to be joined in the
arbitration proceeding if CCLT's presence is required or requested by CITY for complete
relief to be recorded in the arbitration proceeding.
4.7 Assignment. CCLT may assign this Agreement to an affiliate of CCLT without consent
from CITY. Any other assignment of this Agreement by CCLT shall require %%ritten
consent from CITY; provided, howe%er, that such consent from CITY shall not be
unreasonably withheld.
4.8 Notice. Any notice required to be given under this Agreement or and 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 - deliver). addressed to the respective
parties as folio%%s:
CITY
City of Bayto%%n
Attn: City Manager
P.O. Box 424
BaN to%% n. TX 77522
MIT
Chambers Count) Logistics Terminal. LP
Attn: President
P.O. Box 1356
La Porte. TX 7772 -1356
Cost- Share:%ereement. Page 3
4.9 Binding Effect. I his 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 CCLT 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
terns 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 terns 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 terns 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 Se%erabilitN. frail) section. subsection, paragraph. sentence. clause. phrase or word in this
Agreement, or application thereofto any person or circumstance is held invalid by any court
of competent jurisdiction, such holding shall not affect the validih 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 acknow ledge that they have read. understand and intend to
be bound by the terms and conditions of this Agreement.
Cost -Share Agreement. Page 9
4.19 Authorith. 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
Date ").
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ. SR.. City Attorney
20_ (the "Effective
CITY OF BAYTOWN
By:
RICHARD L. DAVIS, City Manager
EXECUTED ON this the _ day of* 20�
CHAMBERS COUNTY LOGISTICS
TERMINAL. LP.
By and through its General Partner
CHAMBERS COUNTY ASSOCIATES.
INC.
By:
(Signatt re)
(Printed Name)
(Title)
Cost -Share ,agreement. Page 10
STAIT OF I-EXAS
COUNTY OF &,,,,,— §
Before mePthe , the undersigned notar, public, on this dad personally
appeared , the it of Chambers
Count, In en eral Partner of CHAMBERS COUNTY LOGISTICS TERMINAL. LP, on
behalf of such limited partnership
known to me;
pro%ed to me on the oath of :or
pro%ed to me through his her current
{description of identification card or other document issued by the federal
goy ernment or and state government that contains the photograph and signature of
the ackno%% ledging person }
(check one)
to be the person whose name is subscribed to the foregoing instrument, and ackno%%ledged to me
that he she executed that instrument for the purposes and consideration therein expressed.
Given under mN hand and seal of office this dad of .209
ALLISON DARDEN Notary Public in and for the State of
•' ' ''•
..1 Notory Public stote of Texas Texas
My Commission Expires M) commission expires: 9
March 24, 2019
R Karen Fdes C umrncls KT\ (oil tiharc lgrecmem C ost•4harc \grccnrcm K I% 050524115 \ol aslingl psvc0- 20.01bC hanged21ncluder7harr.doc
Cost -Shure Agreement. Page I I