Ordinance No. 13,643ORDINANCE NO. 13,643
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
APPROVING THE COST -SHARE AGREEMENT BETWEEN THE BAYTOWN AREA
WATER AUTHORITY AND TGS CEDAR PORT PARTNERS, L.P., FOR THE 6 MGD
SURFACE WATER TREATMENT PLANT PROJECT; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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WHEREAS, the Baytown Area Water Authority's enabling legislation requires that the City Council
approve the agreement before Baytown Area Water Authority (`BAWA") enters into the same; and
WHEREAS, the City of Baytown desires to approve such agreement; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the recitals set forth hereinabove are hereby found to be true and correct and are
hereby adopted.
Section 2: That the City Council of the City of Baytown, Texas, hereby approves the Cost -Share
Agreement between the Baytown Area Water Authority and TGS Cedar Port Partners, L.P., for the 6 MGD
Surface Water Treatment Plant Project, which agreement is attached hereto as Exhibit "A" and incorporated
herein for all intents and purposes.
Section 3: 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 v�ji'e of the City Council of the City of
Baytown this the 20'' day of November, 2017. /�
ATTES
LE ICIA BRYSCH, City CleV
APPROVED AS TO FORM:
R
,16&ACIO RAMIREZ, S ., City Attorney
STEPHEN ILD.GNCARLOS, Mayor
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Exhibit "A"
COST -SHARE E AGRElEMIENT
THE STATE OF TEXAS
COUNTY OF CHAMBERS
This Cost -Share Agreement (the "Agreement") is made and entered into between the
BAYTOWN AREA WATER AUTHORITY, a conservation and reclamation district created
under Section 59, Article XVI, Texas Constitution located in Harris and Chambers Counties,
Texas ("BAWA"), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522,
and TGS CEDAR PORT PARTNERS, L.P., a Texas limited partnership ("TGS"), whose address
for purposes hereof is 11811 East Freeway, Suite 630, Houston, Texas 77029.
WITNESSETH:
1.
1.1 Pro•L. Subject to and upon the terms, provisions and conditions hereinafter set forth,
the Parties hereto agree that TGS will perform the following scope of services:
a. Construct approximately 7,600' x 30' x 1' limestone base road (Type A Grade I
compacted to 95% density) with 8" lime stabilized subgrade (compacted to 95%
maximum dry density) and HP370 geotextile fabric installed,
b. Clear, grub, grade ROW and excavate road side swales, and
C. Replace drainage pipes across Sutton Gully,
as more particularly described in the Construction Plans for BAWA Road, which is
attached hereto as Exhibit "A" and incorporated herein for all intents and purposes (the
"Project").
II.
2.1 TGS's Obligations. In addition to TGS's obligations elsewhere in this Agreement, TGS
shall have the following obligations -
a. Project Design.
1. TGS agrees that it will employ one or more professional engineers to
design the Project.
2. TGS agrees that the design of the Project will comply with all laws, rules
or regulations of applicable governmental authorities, in order to make the
Cost -Share Agreement, Page 1
Project described hereinabove meet or exceed the quality standards set by
applicable governmental authorities.
TGS shall be obligated to submit plans and specifications for the
construction of the Project (the "Plans and Specifications") to the BAWA
Engineer, for approval and/or for required revision and approval by
BAWA's Engineer, within ninety (90) days after the Effective Date of this
Agreement, if it has not already done so at the time of execution of this
Agreement.
b. Project Construction.
1. Within ten (10) days after BAWA Engineer's final approval of the Plans
and Specifications submitted by TGS in accordance with Section 2.1(c),
TGS shall prepare all necessary documents, which shall include a
requirement for performance and payment bonds along with insurance
requirements meeting or exceeding BAWA's minimum limits, and be
obligated to advertise for bids for the construction of the Project in
accordance with all applicable laws governing BAWA's construction
projects. After receipt of bids, TGS and BAWA shall evaluate the bids
received and shall agree on the award of the construction of the Project to
the lowest responsible bidder Within thirty (30) days of receipt of bids,
TGS shall commence or cause the commencement of 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 TGS and BAWA (collectively the
"Parties"). TGS grants BAWA the right to review all construction
drawings, geotechnical reports and other construction -related documents
and agrees that no changes to the BAWA-approved Plans and
Specifications shall be made without BAWA's prior written approval.
2. TGS hereby grants BAWA the right and privilege to enter its property at
all reasonable hours in order to inspect the construction of the Project, so
long as BAWA's entry does not unreasonably impede the construction
thereof.
3. Upon request, TGS shall provide an update on the status of the Project to
BAWA.
4. Subject to the reimbursement cost -share provisions in Article III, TGS
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.
Cost -Share Agreement, Page 2 4�1_
Conveyance of Easement. The legal title to the Project and all appurtenances
related thereto shall at all times be vested in TGS or its affiliates and also
including the Chambers County Industrial District #I (CCID #1); and BAWA
shall have no claim thereto; provided that BAWA shall have a nonexclusive
perpetual easement for access and utility purposes and shall have the right to use
the Project once the same is completed and accepted by BAWA. TGS at any time
after completion may convey the Project to CCID #1 and will be released from its
obligations hereunder only if CCID #1 assumes all of TGS's obligations. TGS (or
the affiliated entities that may own the property) and BAWA shall mutually agree
on the boundaries of the easement that TGS is required to convey to BAWA
pursuant to this section; however, the boundaries shall generally be those as
depicted in Exhibit A. Except for the surveying costs (which is shared in
accordance with Article 1II), all the expenses associated with the conveyance of
the easement contemplated in this section necessary for the conveyance shall be
borne exclusively by BAWA. The completion of this conveyance shall be a
condition precedent to the payment of BAWA's cost -share in accordance with
Article III. Such easement will be recorded in the Real Property Records of
Chambers County, Texas, in a form and with content approved by BAWA. The
parties hereto understand and agree that TGS or its affiliate may convey legal title
to the Project and all appurtenances related thereto to CCID #1 and that the road
may become a public road.
d. Project Maintenance. Except as provided for in Section 2.2.b, TGS, at its own
cost and expense, shall have the right, privilege and obligation to maintain the
shared portions of the Project for use by both BAWA and TGS, including the
obligation to repair or replace any damage or injury done to any portion of the
Project caused by TGS, its officers, agents, employees, invitees or visitors within
ten (10) days of the date on which damage or injury occurred. If the General
Manager of BAWA (the "General Manager") after consultation with TGS,
determines that any portion of the Project damaged by TGS, its officers, agents,
employees, invitees or visitors is not being repaired and/or replaced in accordance
with this Agreement, the General Manager shall so notify TGS in writing and
require TGS to perform the identified work forthwith and continue diligently
therewith until completion. If more than ten (10) days are required to complete
the repair or replacement, then BAWA shall extend such period provided TGS
has commenced the repair or replacement work and is diligently prosecuting such
work to completion. 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 General Manager may, after an additional 10 days written notice
declare TGS in default, terminate this Agreement, and/or seek any other
appropriate remedy which may be available to BAWA, including, but not limited
to, making such repairs or replacements at TGS's sole cost and expense. It is
understood if such repairs or replacements are made by BAWA and BAWA was
not responsible for such damage, TGS agrees to pay the cost thereof to BAWA on
demand. Should TGS fail to timely pay such costs, BAWA shall have a lien on
the TGS's property until such costs are paid. BAWA's lien shall be superior to all
Cost -Share Agreement, Page 3
other levies except for tax liens and liens for street improvements and shall accrue
interest at the rate of ten percent per annum or the maximum rate allowed by law.
Except as provided in this section and Sections 2.2.b and 2.2.c, BAWA shall have
no right or privilege to remove or interfere with any part or portion of the Project
during or after construction. If TGS conveys the Project to CCID #l, such
conveyance shall be conditioned upon CCID assuming all maintenance
obligation. BAWA shall nevertheless not be relieved of its obligations under
Section 2.2.b or 2.2.c hereunder.
2.2 BAWA's Obligations.
Review of Plans and Specifications. BAWA Engineer shall review and, if
appropriate, approve the Plans and Specifications submitted by the TGS in
accordance with Section 2.1(a)(3).
b. Project Maintenance. BAWA, at its own cost and expense, shall have the right,
privilege and obligation:
(a) to maintain the entire Project after completion of the Project and prior to
BAWA's final acceptance of the East District 6 MGD Surface Water
Treatment Plant Project; and
(b) to maintain only that portion of the Project used exclusively by BAWA, its
officers, agents, employees, invitees or visitors after both the completion
of the Project and BAWA's final acceptance of the BAWA's East District
6 MGD Surface Water Treatment Plant Project.
C. Project Repair. At its own cost and expense, BAWA shall have the right,
privilege and obligation to repair or replace any damage or injury done to any
portion of the Project caused by BAWA, its officers, agents, employees, invitees
or visitors within ten (10) days of the date on which damage or injury occurred. If
TGS believes that any portion of the Project damaged by BAWA, its officers,
agents, employees, invitees or visitors is not being repaired and/or replaced in
accordance with this Agreement, the TGS shall so notify BAWA in writing and
require BAWA to perform the identified work forthwith and continue diligently
therewith until completion. If more than ten (10) days are required to complete
the repair or replacement, then TGS shall extend such period provided BAWA
has commenced the repair or replacement work and is diligently prosecuting such
work to completion. 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, TGS may seek any appropriate remedy which may be available to TGS,
including, but not limited to, making such repairs or replacements at BAWA's
sole cost and expense. It is understood if such repairs or replacements are made
by TGS, BAWA agrees to pay the reasonable cost thereof to TGS within thirty
(30) days of receipt of an invoice therefor. Interest on delinquent payments shall
accrue in accordance with Section 2251.025 of the Texas Government Code.
r
* and any expansion thereof
Cost -Share Ap-reement. Page 4 le-
d. Abandonment. After TGS has (i) conveyed the easement to BAWA in
accordance with Section 2.1.c and (ii) completed the construction of the Project,
BAWA shall abandon the 4.305 -acre easement previously conveyed to it by TGS
and recorded in Volume , Page _, Book _ of the Real Property Records of
the Chambers County Clerk.
3.1 Shared Project Costs. The Parties agree that the costs of the Project shall not exceed the
actual costs incurred by TGS; provided, however, if TGS constructs the Project through
its own force rather than contracting with a third party for the same, BAWA shall be
obligated to pay is shared cost for construction based on the the bid of the lowest
responsible bidder (the "Construction Costs"). The Construction Costs plus the
engineering costs, including surveying and material testing costs, shall hereinafter be
referred to as the "Total Project Costs." The Total Project Costs shall be shared as
follows:
1. BAWA shall pay 70% of the Total Project Costs, up to an amount not to exceed
ONE MILLION ONE HUNDRED NINETY THOUSAND AND NO/100
DOLLARS ($1,190,000.00).
2. TGS shall pay 30% of the Total Project Costs, up to an amount not to exceed
FIVE HUNDRED TEN THOUSAND AND NO/100 DOLLARS ($510,000.00)
3.2 BAWA's Payments Due. All payments due hereunder shall be paid by BAWA upon a
reimbursable basis with payment being due within thirty (30) days after either (i)
BAWA's receipt of an invoice for work or services performed or (ii) the work or services
to which the invoice relates has been completed ("Due Date"). On or before the Due
Date, BAWA will deliver to TGS a check payable to TGS for its share of the Project
costs based upon the percentages specified in Section 3.1.a hereinabove. Late payments
will accrue interest in accordance with Section 2251.025 of the Texas Government Code.
3.3 Costs in Excess of Maximum. In the event it is determined that ONE MILLION SEVEN
HUNDRED THOUSAND AND NO/] 00 DOLLARS ($1,700,000.00) is insufficient to
cover the Total Project Costs, the Parties may:
1. provide such additional funding as necessary to cover the Total Project Costs,
whereby the construction of the Project will continue; or
2. choose not to provide such additional funding, whereby this Agreement will
terminate and the Parties will split evenly the incurred costs, each being
responsible for 50% thereof.
3.4 Audit. BAWA and its authorized representatives shall have the right to review and audit
all books, records, vouchers and documents of whatever nature related to the TGS's
Cost -Share Agreement. Page 5 4-
performance under this Agreement during the period of performance of this Agreement
and for five (5) years thereafter.
FLU
4.1 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 (i)
TGS's conveyance of the easement as required in Section 2.1.c, (ii) BAWA's
abandonment of the easement as required in Section 2.2.c, and (iii) the final completion
and acceptance of the Project by TGS and BAWA.
4.2 Force Majeure. If force majeure prevents either Party hereto from performing any of its
obligations under this Agreement, in whole or in part, then the obligations of such party,
to the extent affected by such force majeure, shall be suspended during the continuance
of any inability so long as such party is exercising due diligence to resume performance
at the earliest practicable time. As soon as reasonably possible after occurrence of the
force majeure relied upon, the party whose contractual obligations are affected thereby
shall give notice and full particulars of such force majeure to the other party. The term
"force majeure," as used herein, shall include, without limitation of the generality thereof,
acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy,
orders of any kind of the government of the United States or the State of Texas or any
civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of
government and people, civil disturbances, explosions, breakages or accidents to
machinery, pipelines or canals, partial or entire failure of water supply, and any other
inabilities of either Party, whether similar to those enumerated or otherwise, which are
not within the control of the party claiming such inability, and which such party could not
have avoided by the exercise of due diligence and care.
of
5.1 Non -Waiver. Failure of BAWA to declare any default immediately upon occurrence
thereof, or delay in taking action in connection therewith, shall not waive such default,
but BAWA 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.
5.2 Default by TGS. If TGS is in default of this Agreement, then BAWA shall have the right
to declare TGS in default and terminate the Agreement without further notice, unless
otherwise specified herein, or exercise any other rights or remedies available hereunder
or as a matter of law. TGS is in default of this Agreement if
1. TGS fails to timely perform performance of any obligation imposed upon TGS
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
Cost -Share Agreement. Page 6
reasonable detail has been given to TGS or, if the General Manager in his sole
discretion, determines that the default cannot reasonably be cured within the thirty
(30) day period, if TGS does not commence curative work within the thirty (30)
day period and prosecute the work to completion with diligence;
2. TGS 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. TGS makes any assignment of this Agreement other than as permitted herein,
without the written approval of BAWA.
Should BAWA terminate this Agreement for TGS's default, BAWA will be relieved of
its obligations hereunder and TGS shall not be entitled to any reimbursement of the costs
incurred associated with the Project pursuant to Article Ill. Additionally, should this
Agreement be terminated, BAWA shall be entitled to seek all other relief which may be
allowed by law. Any and all defaults declared by BAWA shall be final and binding upon
TGS.
5.3 Remedies Cumulative. All rights and remedies of BAWA and/or TGS under this
Agreement shall be cumulative and none shall exclude any other rights or remedies
allowed by law.
5.4 Amendments. This Agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both Parties hereto.
5.5 Release. Nothing contained herein shall be construed in any way so as to waive in whole or
part the BAWA's sovereign immunity. TGS assumes full responsibility for its obligations
under this Agreement performed hereunder and hereby releases, relinquishes, discharges,
and holds harmless BAWA, 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 TGS's work to be
performed hereunder, but not for the damage to the Project that may be caused by BAWA or
the failure of BAWA to perform its obligations hereunder. This release shall apply with
respect to TGS's work regardless of whether said claims, demands, and causes of action are
covered in whole or in part by insurance.
5.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
BAWA and TGS hereby agree that no claim or dispute between BAWA and TGS 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 BAWA is subjected to an
Cost -Share Agreement, Page 7
arbitration proceeding notwithstanding this provision, TGS consents to be joined in the
arbitration proceeding if TGS's presence is required or requested by BAWA for complete
relief to be recorded in the arbitration proceeding.
5.7 Assignment. Neither TGS nor BAWA shall assign this Agreement without first obtaining
the written consent of the other party.
5.8 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:
BAWA
Baytown Area Water Authority
Attn: General Manager
P.O. Box 424
Baytown, TX 77522
TGS
TGS Cedar Port Partner, L.P.
Attn: James Scott
11811 East Freeway, Suite 630
Houston, TX 77029
5.9 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 BAWA and TGS and their respective successors and assigns.
5.10 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.
5.11 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 put -poses shall be Baytown, Harris County,
Texas.
5.12 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.
5.13 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.
Cost -Share Agreement, Page 8
5.14 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.
5.15 Headings. The headings and subheadings of the various sections and paragraphs of this
Agreement are insetted 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.
5.16 Gender and Number. The pronouns of any gender shall include the other genders, and
either the singular or the plural shall include the other.
5.17 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 retraining portions
of this Agreement, and the Parties hereby declare they would have enacted such remaining
portions despite any such invalidity.
5.18 Agreement Read. The Patties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
5.19 Authorily. The officers executing this Agreement on behalf of each patty 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").
BAYTOWN AREA WATER AUTHORITY
By:
RICHARD L. DAVIS, General Manager
ATTEST:
LETICIA BRYSCH, Assistant Secretary
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., General Counsel
Cost -Share Agreement, Page 9
EXECUTED ON this thej"6day of , 20 V-1
TGS CEDAR PORT PARTNER, L.P., a Texas
limited partnership
By: TGS CEDAR PORT GP, LLC, a Texas
limited lia ity company, i General
Partner -7
(Signature)
;///g1 Axa
(Printed Name)
(Title)
STATE OF TEXAS §
COUNTY OF�IJ�C :S c� §
\
Before me, 1<�,C',the undersigned notary public, on this day personally
appeared W ,\\. �� �.�-�, , the %c-", - of TGS CEDAR
PORT GP, LLC, the General Partner of TGS Cedar Port Partne , L4.., on behalf of such limited
partnership
_✓_ 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 <ir&
,� ftARl L DALEO
d l *= My Notary ID 0126078818
' • •P, 2="r Eg4W October 14, 2020
day of , 20
Nota Public in and for the State of
Texas
My commission expires:hti—�L\;O
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Cost -Share Agreement, Page 10