Ordinance No. 14,152ORDINANCE NO. 14,152
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 THE TEMPORARY
USE DEVELOPMENT AGREEMENT WITH EXXON MOBIL
CORPORATION FOR PROPERTY LOCATED AT 5903 BAYWAY DRIVE,
BAYTOWN, HARRIS COUNTY, TEXAS; 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
and directs the City Manager and City Clerk of the City of Baytown to execute and attest to the
Temporary Use Development Agreement with Exxon Mobil Corporation for property located at
5903 Bayway Drive, Baytown, Harris County, Texas. 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 affirmative vote of the City Council of the
City of Baytown, this the 22nd day of August, 2019.
BRANDON CAPETILLO, Mayor
ATTE
L -TICIA BRYSCH, Cit erk
APPROVED AS TO FORM:
dwzm��� el-4
Q&NACIO RAMIREZ, SR., 'ty Attorney
lcobfs0l'Iega1 KarewFiles.City Council Ordinances\2019\August 22 TemporaryUseDevelopmentAgreementwithExxonMobil.doc
Exhibit "A"
TEMPORARY USE DEVELOPMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Temporary Use Development Agreement (this "Agreement"), dated August ,
2019, is made between the CITY OF BAYTOWN, a municipal corporation located in Harris and
Chambers Counties, Texas (the "City") and EXXON MOBIL CORPORATION, a New Jersey
corporation ("ExxonMobil"). The City and ExxonMobil are jointly referred to herein as "the
Parties."
RECITALS:
WHEREAS, ExxonMobil will expand its existing facilities in the extraterritorial
jurisdiction of the City of Baytown; and
WHEREAS, as a part of such expansion, ExxonMobil desires to use temporarily the
property owned by KM Holdings LP (the "Owner") located at 5903 Bayway Drive which is
more particularly described as follows:
LT 3 & E 90 FT LT 2 & W 40 FT OF LT 4 BLK H WOOSTER B & I
BAYTOWN, HARRIS COUNTY, TEXAS
(the "Property"); and
WHEREAS, Owner and ExxonMobil have entered or will enter into an agreement, which
allows ExxonMobil and/or its contractors and subcontractors to use the Property on a temporary
basis for a temporary transportation facility; and
WHEREAS, the City is supportive of ExxonMobil's use of Owner's property, as it would
minimize the use of public infrastructure, reduce the length of road closures, and reduce the
inconvenience to the public, while protecting the health, safety and welfare of the citizens of the
City; and
WHEREAS, the use of the Property as desired by ExxonMobil does not meet the rules
and regulations of the City; and
WHEREAS, the City is willing to consent to the use for a short term; provided certain
conditions as expressed herein are honored by the Parties;
NOW THEREFORE, in consideration of the mutual covenants, agreement and benefits to
both Parties, it is agreed as follows:
Temporary Use Development Aereement, Page 1
I.
USE OF PROPERTY
1.01 Agreement to Temporarily Use the Property. Within thirty (30) calendar days of the
effective date of this Agreement, either (i) ExxonMobil shall provide the City with a copy
of the agreement into which it has entered with the Owner for the temporary use of the
same for the City's review and approval or (ii) the Owner shall enter into a license
agreement with the City averring to the fact that ExxonMobil has the right to use the
property for the temporary purpose as stated herein. Additionally, before ExxonMobil
uses the Property pursuant to this Agreement and within thirty (30) days of the City's
approval of the Development Plan, the Performance Security described in Section 2.02
must be deposited with the City. The term of the applicable agreement shall be for a term
of at least a year and must automatically extend for the same period of time that this
Agreement is extended, if any. The term of the applicable agreement between the Owner
and ExxonMobil shall extend at least three months longer than the term of this
Agreement and must provide that (i) the City have access to the Property to inspect and
perfonn the Restoration Activities required of ExxonMobil herein should ExxonMobil
fail to perfonn or should this Agreement be terminated and (ii) Owner shall not in any
way restrict such access or interfere with the perfonnance of the Restoration Activities of
the ExxonMobil or the City. The Parties understand and agree that this Agreement is
contingent upon the City's receipt and approval of the agreement referenced in this
section or the license agreement. Should (i) the applicable agreement not be timely
submitted or not be approved by the City or (ii) the perfonnance security not be timely
deposited with the City, this Agreement shall automatically tenninate and the Parties
shall have no further obligations hereunder.
1.02 Improvements. ExxonMobil may make improvements to the Property in accordance with
the development plan, which is attached herein for all intents and purposes (the
"Development Plan"), or as otherwise approved by the City in writing: (the
"Improvements"). ExxonMobil shall secure building pen -nits from the City of Baytown in
order to construct and/or install the Improvement on the property. Improvements
installed shall be subject to and meet all building code and other City code requirements,
except as otherwise provided for in Section 1.03. The Improvements must pass all
required inspections by the City prior to use.
1.03 Exceptions to Codes. For ExxonMobil's temporary use of the Property, the City agrees
that the following rules shall be modified so as to allow the temporary use of the Property
as contemplated herein:
1.03.1 ULDC. The Improvements herein are determined to meet the use
restrictions of the Unified Land Development Code ("ULDC") since the
temporary transportation facility is a temporary use and not specifically
addressed therein.
1.03.2 WPZ. The use of the Property by Owner and/or ExxonMobil consistent
with this Agreement shall be construed to meet all requirements of the
Temporary Use Development Agreement, Page 2
watershed protection zone ("WPZ") requirement so long that such use is in
strict compliance with this Agreement.
1.04 Use. ExxonMobil shall use the Property as a temporary transport facility in strict
compliance with its agreement with the Owner and with this Agreement. Should the
terms of its agreement with Owner and this Agreement conflict, this Agreement shall
control.
1.05 Conditions on Use. ExxonMobil agrees that its use of the Property as allowed in Section
1.02 shall be conditioned upon the following:
1.05.1 No long-tenn storage of materials shall be allowed on the Property.
Storage of materials on the Property will be minimized as much as
reasonably possible in order to conduct transport activities in compliance
with the associated heavy haul pen -nit.
1.05.2 Deliveries to the Property and transportation therefrom shall be perfonned
so as to reduce the impact on neighbors and the public.
1.05.3 Transports to and froth the Property shall occur at hours in compliance
with the associated heavy haul permit.
1.05.4 The Property shall be repaired and restored to its natural state and in as
good or better condition than it was in prior to the execution of this
agreement. All Improvements must be removed from the Property prior to
the expiration of the tenn hereof. Such restoration and removal activities
are herein referred to collectively as "Restoration Activities."
1.06 Traffic Control Plan. ExxonMobil must submit or cause to be submitted a traffic control
plan for review and approval by the City. Such traffic control plan shall focus on
minimizing the impact of ExxonMobil's operations on the public, as well as the public
health, safety and welfare. ExxonMobil, its contractors and employees shall abide by
such plan.
1.07 Transport Services. ExxonMobil shall secure a transportation company that has
sufficient equipment and resources to transport materials from the Property on the public
right-of-way to ExxonMobil's property located at . ExxonMobil
shall require such company to enter into a transport agreement with and/or obtain a heavy
haul permit from the City, in which the company shall (i) meet certain operational,
equipment and personnel standards, (ii) allow inspections of the operations, (iii) obtain
approval of the route, transport times, and road closures, (iv) obtain and pay for the
services of the City's police, traffic and fire service personnel for the transport, (v) obtain
approvals of the various utilities that may be affected by the transport and, if necessary,
services required of such utilities in order to facilitate a smooth transport, (vi) give notice
to the public as well as neighboring property owners concerning the transport operations,
(vii) provide appropriate matting and signage to protect the public infrastructure and
Temporary Use Development Agreement, Page 3
public safety, (viii) repair for all damages to the public infrastructure within seven (7)
days or pay for the same at actual cost plus 10%, (ix) meet the City's insurance
requirements, and (x) provide an indemnity to the City.
1.08 Right -of -Entry. Upon advance notice, ExxonMobil and Owner grant to the City, its
officers, agents and employees, the right and privilege to enter the Property at all
reasonable hours in order to ensure compliance with this Agreement.
II.
COSTS
2.01 Responsibility for Costs. ExxonMobil expressly understands and agrees that all costs
associated with this Agreement shall be borne by ExxonMobil, and ExxonMobil shall not
seek recovery of costs from the City. It is expressly understood and agreed that the City
is not obligated to expend any money under this Agreement.
2.02 Performance Security. ExxonMobil shall deposit a mutually agreeable security
instrument in an amount detennined by the City's Director of Public Works and
Engineering with the City to guarantee perfonnance of the Restoration Activities upon
expiration or earlier tennination of this Agreement. Should ExxonMobil fail to timely
perform the Restoration Activities, the City shall do so at ExxonMobil's sole cost and
expense. Should the City undertake ExxonMobil's obligations concerning the
Restoration Activities,
2.02.01 ExxonMobil shall be assessed an administrative charge of 10% of the total
cost of the Restoration Activities;
2.02.02 The City shall use the performance security to cover the cost of the
Restoration Activities required herein; and
2.02.03 ExxonMobil shall pay the City for any expense and administrative fee that
exceeds the amount of the performance security. Such payment shall be [Wade
within thirty (30) days of the City's demand therefor. If such payment is not
timely made, interest shall accrue on the late payment at the rate specified in
Section 2551.025 of the Texas Government Code.
III.
TERM AND TERMINATION
3.01 Term. Subject to and upon the terms and conditions set forth herein, this Agreement
shall continue in force and effect for twelve (12) months from the Effective Date;
provided, however, that if the Restoration Activities are incomplete by such date, the
City, through its City Manager, and ExxonMobil may extend this Agreement for an
additional three (3) months. It is expressly understood that the obligations concerning the
Restoration Activities shall survive expiration or termination of this Agreement.
Temporary Use Development Agreement, Page 4
3.02 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 perfonnance
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.
3.03 Termination. This Agreement may be tenninated in the following manner:
a. By mutual written agreement and consent of both Parties;
b. By the City if ExxonMobil fails to fulfill the obligations set forth herein;
C. By ExxonMobil if the City fails to fulfill the obligations set forth herein; or
d. By the City if the Owner terminates its agreement with ExxonMobil for the
temporary use of the Property.
The tennination of this Agreement shall extinguish all rights, duties, obligations and
liabilities of the Parties under this Agreement, except for
➢ any cost incurred because of the breach; and
➢ ExxonMobil's obligation to perfonn the Restoration Activities, which trust be
completed within sixty (60) days of the termination of this Agreement else the
City will perform the same using the perfonnance security, as provided in Section
3.02 hereinabove.
IV.
GENERAL PROVISIONS
4.01 Limited Release. ExxonMobil hereby releases, relinquishes, and discharges 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, that is caused by or alleged to
be caused by, arising out of, or in connection with this Agreement. ExxonMobil assumes
full responsibility for its obligations and the obligations of its contractor or subcontractors
under this Agreement and hereby releases, relinquishes, discharges, and holds harnless
the City, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character that are caused by or alleged to be caused by, arising
out of, or in connection with ExxonMobil's obligations hereunder. This release shall
Temporary Use Development Agreement, Page 5
apply with respect to ExxonMobil's work regardless of whether said claims, demands,
and causes of action are covered in whole or in part by insurance.
4.02 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
the City and ExxonMobil hereby agree that no claim or dispute between the City and
ExxonMobil 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, ExxonMobil consents to be joined in the arbitration proceeding if
ExxonMobil's presence is required or requested by the City for complete relief to be
recorded in the arbitration proceeding.
4.03 Sovereign Immunity. Nothing in this Agreement shall be construed so as to limit or
waive, in whole or part, the sovereign immunity of the City.
5.04 Notice. Any notice penmitted or required to be given in this Agreement to ExxonMobil
shall be given by registered or certified United States Mail, postage paid, return receipt
requested and addressed to Exxon Mobil Corporation, Attention:
Any notice
permitted or required to be given in this Agreement to the City shall be given by
registered or certified United States Mail, postage paid, return receipt requested,
addressed to City of Baytown, Attention: City Manager, P.O. Box 424, Baytown, Texas
77522-0424. All notices hereunder given shall be deemed validly given when actually
received or, if earlier, on the third day following deposit in a United States Postal Service
post office or receptacle if the notice otherwise complies with all of the requisites of this
article.
4.05 Independent Contractor. The relationship between ExxonMobil and the City shall be that
of an independent contractor.
4.06 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the
Parties hereto and shall not be construed to confer any rights upon any third party. The
City shall never be subject to any liability in damages to any customer or contractor of
ExxonMobil for any failure to perform its obligations under this Agreement.
4.07 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.
4.08 Timeliness. Time is expressly declared to be of the essence in regard to this Agreement.
4.09 Choice of Law; Venue. This Agreement shall be construed under and in accordance with
the laws of the State of Texas, and all obligations of the Parties created hereunder are
performable in Harris County, Texas.
Temporary Use Development Agreement, Page 6
4.10 Severability. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision thereof and
this Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
4.11 Non -Waiver. Failure of either party hereto to insist on the strict performance of any of
the agreements herein or to exercise any rights or remedies accruing thereunder upon
default or failure of performance shall not be considered a waiver of the right to insist on
and to enforce, by an appropriate remedy, strict compliance with any other obligation
hereunder or to exercise any right or remedy occurring as a result of any future default or
failure of perfonnance.
4.12 Interpretation. In the event of any ambiguity in any of the terms of this contract, 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 Captions. The captions appearing at the first of each numbered section in this Agreement
are inserted and included solely for convenience and shall never be considered or given
any effect in construing this Agreement or any provision hereof, or in connection with the
duties, obligations or liabilities of the respective Parties hereto or in ascertaining intent, if
any question of intent should arise.
4.14 Complete Agreement. This Agreement constitutes the sole and only agreement of the
Parties hereto and supersedes any prior understandings of written or oral agreements
between the Parties with respect to the subject [natter herein.
4.15 Modification. No amendment modification or alteration of the teens hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and duly
executed by the Parties hereto.
4.16 Assignment. Neither Party to this Agreement may assign their rights, duties or interests
without first obtaining the written consent of the other Party.
4.17 Authority. Each party has the full power and authority to enter into and perform this
Agreement, and the person signing this Agreement on behalf of each party has been
properly authorized and empowered to enter into this Agreement. The persons executing
this Agreement hereby represent that they have authorization to sign on behalf of their
respective corporations and/or business entities.
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.
Temporary Use Development Agreement, Page 7
4.19 Multiple 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.
IN WITNESS WHEREOF, the undersigned ExxonMobil and the City hereto execute this
Agreement on this _ _ _ day of , 2019 (the "Effective Date").
EXXON MOBIL CORPORATION
-- -
(Signature)
(Printed Name)
(Title)
ATTEST:
(Signature)
(Printed Name)
(Title)
CITY OF BAYTOWN, TEXAS
Richard L. Davis, City Manager
ATTEST:
Leticia Brysch, City Clerk
Temporary Use Development Agreement, Page 8