Ordinance No. 13,614ORDINANCE NO. 13,614
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A DEVELOPMENT
AGREEMENT WITH ABBY BAYTOWN SR, LLC; 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
and directs the City Manager and City Clerk of the City of Baytown to execute and attest to a
Development Agreement with Abby Baytown Sr, LLC. A copy of said agreement is attached
hereto, marked 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
City of Baytown, this the 26th day of October, 2017.
S
ATTES
L TI IA BRYSCH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., i Attorney
vote of the City Council of the
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Exhibit "A"
DEVELOPMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF HARRIS §
This Development 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
ABBY BAYTOWN SR, LLC, a Texas limited liability company ("DEVELOPER"), whose
address for purposes hereof is 3333 Welborn Street, Suite 300, Dallas, TX 75219.
WITNESSETH:
1.1 Project. Subject to and upon the terms, provisions and conditions hereinafter set forth,
the parties hereto agree that CITY will:
a. design and construct a sidewalk along Hunt Road,
Construction of 374LF (5 FT wide sidewalks)
b. design and construct a 12" water line along the Hunt Road side of the
development and an 8" water line with casing crossing under Hunt Road, and
Construction of 12" Water Line measuring 437 LF
Construction of 8" Water Line measuring 123 LF
Construction of 14" Steel Casing measuring 100 LF
c. design and construct the sewer line along Hunt Road,
Construction of 673 LF of 10" sewer line
which construction, in part, will serve DEVELOPER'S progressive care facility (the
"Project").
fl.
2.1 DEVELOPER's Obligations. In addition to DEVELOPER's obligations elsewhere in this
Agreement, DEVELOPER shall have the following obligations:
(a) Within ten (10) days after the execution of this agreement, DEVELOPER shall
deposit with the CITY ONE HUNDRED SIX THOUSAND SEVEN HUNDRED
FIFTY-SIX AND 16/100 DOLLARS ($106,756.16), which is projected to be the
total Project Cost based upon the following:
I
MM M M M M M M M M M M M M M M M M �� M M M 1� M 1� M M M 1� M M M M �� M M �� I M M M 1� M M M M 1� M M I
Design and construction of a 374 linear feet of 5-foot$8,949.82
$626.49
wide sidewalk alongHunt Road
Design and Construction of 437 linear feet of 12"
2
Waterline along Hunt Road side of the development and
$42,410.00
$2,968.70
123 linear feet of 8" waterline with 100 linear feet of
14" steel casing crossing under Hunt Road
3
Design and Construction of 673 linear feet of 10 -inch
$43,745.00
$3,062.15
sewer line along Hunt Road
Subtotal
$95104..82
$11651.34
-. Amobnttabe -DEVELDPER
S10667icid
Develogment Agreement. Page 1
(b) 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 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.
(c) 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
DEVELOPER's share of the Project shall be the actual Project cost. The Parties
understand and agree that the amount deposited pursuant to subsection (a) is
merely a deposit which is subject to adjustment once the Project is completed and
accepted by the City.
2.2 CITY's Obli tga ions. In addition to the CITY's obligations elsewhere in this Agreement,
the CITY shall have the following obligations, subject to the DEVELOPER satisfactorily
performing its obligations enumerated in Section 2.1:
(a) CITY agrees that it will at its own cost and expense retain one or more
professional engineers to design the Project.
(b) CITY 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) CITY shall enter into a contract for the construction of the Project and require its
contractor to prosecute the work for the Project in a diligent manner until the
Project is completed and accepted by the CITY.
(d) 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,
Development Agreement, Page 2
DEVELOPER shall have no right or privilege to remove or interfere with any part
or portion of the Project during or after construction.
(e) Upon request, the CITY shall provide an update on the status of the Project to
DEVELOPER.
(f) 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.
(g) 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 that is in
excess of the actual Project cost.
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 and payment by
DEVELOPER.
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)
f
(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;
Development Agreement. Page 3
(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.
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
Development Agreement. Page 4
presence is required or requested by the CITY for complete relief to be recorded in dhe
arbitration proceeding.
4.7 Assignment. 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 ani 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
Cite of Bayto%N n
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
DEVELOPER
Abby Baytown Sr. LLC
3333 Welborn Street, Suite 300
Dallas, TX 75219
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.
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 Ambi ug ities. 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.
Development Aereement. Page 5
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
By:
RICHARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
Development Agreement, Page 6
EXECUTED ON this the M day of _ )L roRE& . 20-L7–.
A1313Y 13A)'- ti'N SR. L l -C
By: (— - a_
(Signature)
(Printed Name)
K --
(Title)
STATE OF TEXAS
COUNTY OF DALLAS
Before me. M)EST,t%69 FL) , the undersigned notary public. on this day personall}
appeared I IZ=A�J K. C.Lt4Q,C6- , the AIof ABBY
BAYTOWN SR. LLC. on behalf of such limited liability corporation
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 Yo day of OUB 15EP,-L�
WESTON GREEN
'Jo�PpY PUB�i
xz: n�Notary Public. State of Texas
zz Comm. Expires 07-22-2020
4i�IF pF ,
�,� Notary ID 130760873
Notary Public In and for the State of
My commission expires:
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Development Aareement, Page 7