Ordinance No. 14,157ORDINANCE NO. 14,157
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 KM 146 PARTNERS, LP, FOR
THE OLD NEEDLEPOINT ROAD REGIONAL LIFT STATION PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED TWO HUNDRED THIRTY THOUSAND SEVEN HUNDRED AND
NO/100 DOLLARS ($230,700.00); 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 l: 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 KM 146 Partners, LP, for
the Old Needlepoint Road Regional Lift Station Project. A copy of said agreement is attached hereto as
Exhibit "A," and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to KM 146
Partners, LP, in an amount not to exceed TWO HUNDRED THIRTY THOUSAND SEVEN HUNDRED
AND NO/100 DOLLARS ($230,700.00) for professional services in accordance with the agreement
authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent
(25%).
Section 4: 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 121h day of September, 2019.
DON CAPETILLO,
LETICIA •YSCH, City tt55rk
APPROVED AS TO FORM:
406����
e-TQNACIO RAMIREZ, SR., City A torney
'1cob(s011egal\Kamn\Fi1es\Ci1y Council`Ordinances\2019\September 12�CosiShamwithKMRealty4OldNeedlepoinlRoadRegionalLiRStationProject..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 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 KM
146 PARTNERS, LP, a Texas limited partnership ("DEVELOPER"), whose address for
purposes hereof is 7500 San Felipe, Suite 750, Houston, Texas 77063.
WITNESSETH:
I.
PROJECT
Subject to and upon the terms, provisions and conditions hereinafter set forth, the parties
hereto agree that DEVELOPER will design and construct, or cause to be designed and
constructed, the Old Needlepoint Road Regional Lift Station Project, which will be located near
OId Needlepoint Road and SH 146 (the "Project"). The Project shall include the following:
1. Shared Wastewater Improvements Project, which will include the regional lift station and
a 16" force main along with gravity wastewater to serve the property described in Exhibit
"A," which is attached hereto and incorporated herein for all intents and purposes (the
"DEVELOPER's Property"); and
2. CITY Wastewater. Improvement Project, which will include gravity wastewater to bring
Texaco, Urgent Care and Sonic LS Offline and gravity wastewater to bring Julie Ann
Villa offline.
(the Shared Wastewater Improvements Project and the City Wastewater Improvements Project
collectively referred to as the "Project").
The Project will be designed to meet all CITY standards and code requirements and to be
capable of providing a total projected flow of 2,152 gallons per minute ("gpm"), which capacity
includes a flow projection of 831 gpm for DEVELOPER's Property. The plans and
specifications for the construction of the Project shall be submitted to CITY and to
DEVELOPER (collectively "the Parties") for approval and will be subject to approval of the
Parties prior to the award of the construction contract for the Project or any portion thereof.
Cost -Share Agreement, Page I
2.1
2.2
II.
Obligations of the Parties
Developer's Obligations. In addition to Developer's obligations elsewhere in this
Agreement, Developer hereby makes the following agreements and/or representations:
a. DEVELOPER has contracted with Kimley Horn & Associates, Inc. ("KHA"), to
prepare a preliminary engineering report for the Project. DEVELOPER shall pay
KHA for the report and shall invoice CITY for 50% of the costs thereof, up to a
maximum amount of FORTY-FOUR THOUSAND AND NO/100 DOLLARS
($44,000.00).
b. Thereafter, DEVELOPER agrees that it will engage KHA to design the Project.
C. DEVELOPER will submit the plans and specification prepared by KHA for the
Project to CITY for approval and will submit all deliverables to CITY for review
and comment. Each deliverable, including the final plans and specifications, must
be approved by both DEVELOPER and CITY prior to the commencement of the
bidding phase of the Project.
d. After the final design is approved in writing by the Parties and DEVELOPER has
received a final invoice therefor from KHA, DEVELOPER shall invoice CITY
for its portion of the costs in accordance with Section 2.2.b hereinbelow.
e. Within ten (10) calendar days of CITY's receipt of bids for the Project,
DEVELOPER shall deposit with CITY the amount of money representing the
69% of the total cost of construction of the Shared Wastewater Improvements
Project (the "DEVELOPER's Portion") based upon the bid received. It is
expressly understood and agreed that this amount is merely a deposit and that
DEVELOPER shall be ultimately responsible for the entire cost of
DEVELOPER's Portion of the Project.
f. During the construction of the Project, should a change order be issued for
DEVELOPER's Portion of the Project, DEVELOPER shall pay CITY within ten
(10) calendar days of any such change order request any increased payment
necessary to cover the cost of such change order.
g. Within ten (10) days of completion and acceptance of the Project by the Parties,
DEVELOPER shall pay CITY the difference, if any, between the actual cost of
construction of DEVELOPER's Portion of the Project and the amounts previously
paid.
City's Obligations. In addition to City's obligations elsewhere in this Agreement, City
hereby makes the following agreements and/or representations:
Cost -Share Agreement, Page 2
a. Within thirty (30) calendar days of the receipt of an invoice from DEVELOPER,
CITY agrees to pay 50% of the cost of the preliminary engineering report for the
Project, up to a maximum amount of FORTY-ONE THOUSAND SIX
HUNDRED FIFTY AND NOI100 DOLLARS ($419650.00).
b. Within thirty (30) calendar days of receiving an invoice from DEVELOPER for
final design services rendered by KHA, CITY shall pay DEVELOPER its portion
of the costs, not to exceed ONE HUNDRED EIGHTY-SIX THOUSAND SEVEN
HUNDRED AND N0/ 100 DOLLARS ($186,700.00) for the cost of the final
design of the Project, including costs of sub -consultants and reimbursable
expenses, as detailed below:
CITY's Portion of the
Actual Design Costs
Shared Wastewater Improvements Project ................................ 31 %
City Wastewater Improvement Project....................................100%
provided, however, for the common items listed below, the City's portion shall be
as follows:
C. After the Parties have approved in writing the plans and specifications for the
construction of the Project, CITY shall advertise for bids in accordance with law.
d. Prior to the award of any contract for the construction of the Project, CITY shall
submit an invoice to DEVELOPER regarding payment for DEVELOPER's
Portion.
e. After receipt of payment from DEVELOPER for the DEVELOPER's Portion of
the construction of the Project, CITY shall enter into a contract with the lowest
responsible bidder. Thereafter, CITY's contractor will begin the construction of
the Project in accordance with the plans and specifications and continue such
construction efforts thereafter in a diligent manner until the Project is completed
and accepted by the Parties.
f. Upon request, CITY shall provide an update on the status of the Project to
DEVELOPER.
Cost -Share Agreement, Page 3
g. Within thirty (30) days after the final completion and acceptance of the Project by
the Parties, CITY shall return to DEVELOPER any monies on deposit for which
CITY has not incurred costs. Alternatively, if monies are owed by DEVELOPER
to CITY, CITY shall invoice DEVELOPER the amount due for DEVELOPER's
portion of the Project.
h. It is expressly understood by the parties, that CITY shall have the obligation to
provide services as specified herein regardless of the stage of completion of this
Project only if DEVELOPER has made all requisite payments specified herein
and is otherwise in compliance with this Agreement.
i. The legal title to the Project on public property and all appurtenances related
thereto shall at all times be vested in CITY. The legal title to the Project on
DEVELOPER's property and all appurtenances related thereto shall at all times be
vested in the DEVELOPER. However, DEVELOPER shall have no right or
privilege to remove or interfere with any part or portion of the Project during
construction.
III.
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 Parties.
IV.
General Provisions
4.1 Non -Waiver. Failure of CITY to declare any default immediately upon occurrence
thereof, or delay in taking action in connection therewith, 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 DEVELOPER. If DEVELOPER is in default of this Agreement, then 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. DEVELOPER fails to timely perform 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 to DEVELOPER or, if 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
Cost -Share Agreement, Page 4
curative work within the fifteen (15) day period and prosecute the work to
completion with diligence;
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 CITY.
Should CITY terminate this Agreement for DEVELOPER's default, 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, CITY shall be entitled to seek all
other relief which may be allowed by law. Any and all defaults declared by CITY shall
be final and binding upon DEVELOPER.
4.3 Remedies Cumulative. All rights and remedies of 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, CITY 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
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 CITY's
sovereign immunity. DEVELOPER assumes full responsibility for its obligations under this
Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds
harmless 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,
CITY and DEVELOPER hereby agree that no claim or dispute between 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
Cost -Share Agreement, Page 5
that CITY is subjected to an arbitration proceeding notwithstanding this provision,
DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPER's
presence is required or requested by CITY for complete relief to be recorded in the
arbitration proceeding.
4.7 Assignment. DEVELOPER shall not assign this Agreement without first obtaining the
written consent of CITY.
4.8 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:
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
DEVELOPER
KM 146 PARTNERS, LP
7500 San Felipe, Suite 750
Houston, TX 77063
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 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 unities. 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.
Cost -Share Agreement, Page 6
4.14 Duplica_ to 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 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 Authori . 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
�'
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO R.AMIREZ, SR., City Attorney
RICHARD L. DAVIS, City Manager
Cost -Share Agreement. Page 7
EXECUTED ON this the 5th day of SEPTEMBER 2019 .
KM 146 PARTNERS, LP
By KM 146, LLC, its General Partner
(Signature)
STEVEN T. STONE
(Printed Name)
AUTHORIZED AGENT
(Title)
STATE OF TEXAS
COUNTY OF HARRIS
Before me, GARRETT LEPOW , the undersigned notary public, on this day personally
appeared STEVEN T. STONE , the AUTHORIZED AGENT of KM 146, LLC,
the General Partner of KM 146 PARTNERS, LP, on behalf of such limited liability company,
X 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 seat of office this 5th
nQPr •Lerr GARRETT SAMUE:Expires
VJ
:® Notary lD g1312
.a My Commizston July 25, 20
day of SEPTEMBER 2019.
Notary PulAic in and for the State of
Texas
My commission expires: 07/25/2022
\\cohfsOI\Iegallxaren\riles\ContmetsTM Realty Cost Share\Cast-ShareAgmement (Recovered)09052019.doc
Cost -Share Aereement, Page 8
A. 1908qb-7
ACCTA 1000127120
c} THOMSON REUTERS BAYTOWN CITY ATTORNElfi�g�
CITY HALL —
2401 MARKET S'1"
BAYTOWN TX 77520-6204
INVOICE 9 840861761 REST INFORMATION CHARGES INVOICE PAGE
AUG 01, 2019 - AUG 31, 2019 1
CHARGE
TAX
TOTAL CHARGE
DESCRIPTION
IN USD
IN USD
IN USD
WEST INFORMATION CHARGES
2,071.67
0.00
2,071.67
IMPORTANT NEWS
TIME SAVING TIP: You can now find answers 2417 to commonly asked customer service questions online at legalsolutions.com/support.
Find information on account maintenance, billing, returns, refunds, OnePass, orders, subscriptions, contracts and more.
FOR BILLING INFORMATION CALL.
1-800-328.4880
1000127120
RETURN BOTTOM PORTION WITH PAYMENT
INVOICE W 840861761
INVOICE DATE 09/,01/2019
ACCOUNT d 1000127120 WEST' INFORMATION CHARGES
VENDOR N 41-1426973 AUG 01, 2019 - AUG 31, 2019
VAT REG# EU826006554
AMOUNT DUE IN USD 2,071.67
DUE DATE IO/01/2019
AMOUNT ENCLOSED IN USD
Thomson Reuters - West
Payment Center
P.O. Box 6292
Carol Stamm, IL 60197-6292
BAYTOWN CITY ATTORNEY
CITY HALL
2401 MARKET ST
BAYTOWN TX 77520-6204
A
0840861761 0000000000000000000000 20190901 ZCPG 000207167 0010 1000127120 9
ACCT# 1000127120
BAYTOWN CITY ATTORNEY
CITY HALL
2401 MARKET ST
BAYTOWN TX 77520-6204
IMPORTANT NEWS
INDICATES A SYSTEM CREDIT
TIME SAVING TIP: You can now find answers 24/7 to commonly asked customer service questions online at legalsolutions.com/support.
Find information on account maintenance, billing, returns, refunds. OnePass, orders, subscriptions, contracts and more.
INVOICE # 840861761 BILLING SUMMARY PAGE
POSTING # 6130182538 AUG O1, 2019 - AUG 31, 2019 1
CHARGE
TAX
TOTAL CHARGE
DESCRIPTION
UNITS
1N USD
IN USD
1N USD
DETAIL OF CHARGES
wFrr MnFr Fx (7ea
MONTHLY CHARGES
DATABASE CHARGES
2,071.67
0.00
2,071.67
TOTAL MONTHLY CHARGES
2,071.675
0.00S
2,071.67S
TOTAL WEST PROFLEX (74466) CHARGES
2,071.67SG
O.00SG
2,071.67SG
TOTAL DETAIL OF CHARGES
2,071.67SG
O.00SG
2,071.67SG
TOTAL, WEST INFORMATION CHARGES
2,071.67G
O.00O
2,071.67G
1000127120
Go Green with e-billing for time savings and convenience: ebilling.thomsonreuters.com
To pay electronically:myaccouni.thomsonreutcrs.com
ONLINE RESOURCES
to •arrAl, ehnmennreuterc rnm lebsalcnhdinnc thnmemnrenterc rnm
• Make payments online and account balances • User guides
• Update addresses and review order status • Filing instructions
• Manage online users' access • Sofiwarc, products,and services information
oirk-viety rnm thnmennre-uterc rnm
• Obtain free usace reporting for cost recovery • Learn more shout our company
REM117A/VCE AND TERMS
• Terms: Net 30, and products are shipped FOB Shipping Point.
• Return the remittance portion and make checks payable to:
Thomson Reuters - West Publishing Corp
Do not enclose cash or additional correspondence.
• Do not fold or staple your check or remittance portion.
Use the enclosed envelope to send your payment.
t U.S. customers may mail payments (no returns) to:
Thomson Reuters - West Payment Center
P.O. Box 6292
Carol Stream IL 60197.6292
TAX INFORMATION
• Canadian Registration Numbers
Canada GST 13641 8480 RT0001
British Columbia PST PST-1000.4632
Quebec QST 1021623993 TQ001
Saskatchewan PST 1895663
• Federal Employer Identification Number: 41-1426973
Telephone E-Mail
• Customer Service 800-3284880 customerserviccCathomsonreuters.cam
• Fcdcral Government Accounts 800-328-2781 fcdgoviCalhomsonreuters.cam
• International Accounts west. international. account. scrvicc@ thomsonreuters.com
• FindLaw(t 800-3284880 findlawcustomerscrviceCthomsonreuters.com
• Payment Inouiries west. arpaymcnicenicrethomsonrcutcrs.com
T HUMSUN REUTERS - WEST PUBLISHING CORPORATION PRINT RETURN POLICY
• If you arc not completely satisfied with the products youpurchasc from West (Thomson Rcutcrs), you may return them. In order to
receive credit, returns must be received within 43 days of the shipdatc. If a return is received aficr 45 days, we regret that we cannot
issue a refund or send the merchandise back to you. Your ship date canbe found on your invoice or online at
myoccount. thomsonreutcrs. com
• Please note that products included in WeslPack, LibraryManagement Arrangement (LMA), West Complete, Library Savings Plan and
Assured Print Pricing programs arc non-refundable. Thesc programsprovide our most favorable terms and titles within are not eligible
to be refunded.
To ensure accurate processing, simply return merchandise inoriginal packaging insuring contents for its value. Please rcfcr to the
shipping instructions included in your package and always enclose a copyof the original delivery or billing document, including a brief
explanation of the reason for the return. All expenses associated withreturns are the responsibility of the customer. Customers will
forfeit any applicable discounts when returning pan of a promotional sale.
The return policy does not apply to online serviccsand other non -print items. Please rcfcr to your Subscriber Agreement.
Special Payment Instructions:
Invoice Number Posting Number Amount of Payment
Explanation /Directions:
Contact: Phone: Email:
Go Green with e-billing for time savings and convenlencembilling. thomsonreuters. cam
To pay electronically: myaccount.thomsonreutcrs.com
Form 14016 C2016 Thomson Reuters