Ordinance No. 8,405980924 -2
ORDINANCE NO. 8405
is AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A FACILITIES
DEVELOPMENT AGREEMENT WITH EDMUNDSON INTERESTS, L.L.C.,
FOR THE DEVELOPMENT OF A CONVENTION CENTER AT BAYLAND
PARK; 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 Mayor and City Clerk of the City of Baytown to execute and attest to a Facilities
Development Agreement with Edmundson Interests, L.L.C., for the development of a convention
center at Bayland Park. A copy of said agreement is attached hereto, marked Exhibit "A," and made
a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect inunediately 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 24`l' day of September, 1998.
�� (!, 4y!t� , -
PETE C. ALFARO, Mayor
ATTEST:
EILEEN P: HALL, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, , City Attorney
Isc:klh 109\ Council\ OrdinanceslEdmundsonDevelopAgreeConferenceBay land
® BAYLAND PARK
PHASE II
FACILITIES DEVELOPMENT AGREEMENT
This contract for the development of Phase II Improvements ( "Project ") on the City of
Baytown's Bayland Park ( "Agreement ") is entered into as of this the 24`h day of September,
1998, by and between the City of Baytown, Texas, a municipal corporation located in Harris and
Chambers Counties, Texas, ( "City ") and Edmundson Interests, L.L.C., a Texas limited liability
company (Developer ").
I. DEFINITIONS
As used in this Agreement, the following words and phrases are defined to mean:
Bayland Park: means that property which is more particularly described in
Exhibit "A," which is attached hereto and incorporated herein for
all intents and purposes.
City: means and refers to the City of Baytown, Texas, and all attendant
boards, agencies, commissions, and related bodies, along with their
respective officers, agents, and employees.
City Manager: means the City Manager of the City of Baytown or his designated
representative.
Construction Cost: means the entire cost to develop the Project not including the costs
of the Developer, outside consultants, work performed directly by
the City, any cost associated with the City's financing of the
Project and any costs provided by the City prior to the date hereof.
Developer: means Edmundson Interests, L.L.C, its officers, agents, employees,
and assigns.
Project: shall mean Phase 11 of the Development which shall include a
publicly financed convention center and other necessary
infrastructure site improvements as determined by the City.
Project Representative: shall mean designees of the Developer who are approved by the
City Manager to oversee the project and perform such other duties
as specified herein or ordered by the City to carry out the intent of
this Agreement.
Total Project Cost: means the total cost of the Project including the cost of outside
® consultants but not including work performed directly by the City
or the Developer, any cost associated with the City's financing of
Facilities Development Agreement, Pale I
EXHIBIT A
C
0
the Project and any costs provided by the City prior to the date
hereof.
II. SCOPE OF WORK
A. Scope of Work
Developer will coordinate the development of the Project of the City to the City's satisfaction.
Developer will coordinate the entire development process, in conformity with state law, which
development process includes, but is not necessarily limited to, the following:
Conceptual Phase
• Negotiate and document architectural /engineering and all professional contracts.
• Establish lines of authority, communications, and team schedules.
• Manage and coordinate design team activities.
• Obtain and analyze preliminary construction pricing.
Identify cost reduction target areas.
• Conduct preliminary structural systems evaluation.
• Conduct preliminary mechanical, plumbing and electrical system evaluation.
Evaluate space usage, core plans, and efficiency factors.
• Identify and integrate parking requirements.
Design Development Phase
• Coordinate meetings between the City and the outside consultants.
• Facilitate timely communication between all parties.
• Evaluate alternative design and structural schemes.
• Evaluate cost benefits of alternative building materials,
mechanical /electrical /plumbing components, etc.
• Develop complete project critical path 'method schedule including design and
construction requirements.
• Conduct periodic pricing reviews to assure that design and budget targets remain in
balance.
• Verify mechanical /electrical /plumbing load assumptions and establish related
operational objectives.
• Evaluate construction methods and techniques.
• Finalize major equipment selections.
• Establish project accounting systems.
• Once complete, coordinate meeting with City officials for preliminary approval.
Facilities Development Agreement, Page 2
® Construction Document Phase
• Prepare and review documents for discrepancies, design, and operation errors,
potential cost savings, etc.
• Formulate signage criteria and restrictions.
• Provide instruction for bid package and specify general conditions.
• Specify scheduling requirements.
• Enforce City's bond and insurance requirements.
• Evaluate and specify testing and quality control requirements.
• Release early material orders (steel, glass, elevators, etc.), if required.
• Evaluate potential material suppliers and subcontractors.
• Verify that value engineering requirements are incorporated in revisions of the
construction documents.
• Incorporate in the contract documents performance specifications and warranty
performance criteria.
• Once complete, coordinate meeting with City officials for final approval.
Permitting Phase
• Coordinate obtaining construction and building permits from all appropriate
governmental authorities.
• Facilitate meetings when appropriate to gain approvals and answer questions.
Contract Award Phase
• Prepare Bid Specifications.
• Construct pre -bid conference for bid work.
• Receive and evaluate bids; recommend contract awards.
• Conduct post bid conferences.
• Review and recommend acceptance of alternatives.
• Verify schedule requirements with contractors.
• Prepare contracts and verify incorporation of all legal requirements.
• Obtain and review construction submittal requirements and where specifications
permit substations; evaluate alternatives.
Construction Phase
• Provide full construction inspection services.
• Manage change order submittal and review process.
• Maintain Project records.
• Conduct regularly weekly job meetings of general contractor and major
subcontractors.
• Prepare bi- monthly written construction progress status reports.
® Manage testing and laboratory services.
• Review and process pay requests submitted by contractor and suppliers.
Facilities Development Agreement, Page 3
® Monitor and control schedules.
• Prepare monthly cost and progress reports.
Coordinate major contractors with specialty contractors (such as security, graphics
and landscaping).
• Verify building layout with surveys.
• Maintain Project cost accounting and draw system.
• Supervise architectural /engineering /construction service contracts.
• Monitor Project security and safety requirements.
• Coordinate tenant work and occupancy schedules.
• Provide ongoing cost and quality control.
• Supervise close -out to include as -built documents, operations training, and
procurements of permits.
B. Instructions during the Development
The Developer shall advise and consult with the City Manager throughout the
development process. All instructions to the outside consultant's or the contractor shall
be forwarded through the Developer. The Developer shall have authority to act on behalf
of the City only to the extent provided in the contract documents and this Agreement
unless otherwise modified by written instrument.
C. Site Examination
The Developer shall examine (and shall require the outside consultants to examine) the
site at intervals appropriate (Developer to examine at least three (3) days a week) to the
stage of construction or as may be reasonably required by the City in order to remain
specifically familiar with the progress and quality of the work and to determine if the
work is proceeding in accordance with the contract documents. On the basis of such on-
site examinations, the Developer shall keep the City Manager informed of the progress
and quality of work and shall attempt to guard the City against defects and deficiencies in
the work of the contractor or overcharges by the contractor or any subcontractor.
D. Developer's Responsibilities
The Developer shall not be responsible for or have control or charge of the construction
means, methods, techniques, sequences or procedures, or safety precautions and
programs in connection with the Project. The Developer shall not have control over the
acts or omissions of the contractors, subcontractors, any of their agents or employees, or
any other persons performing any work on the Project, unless such persons are employed
or in privity with the Developer.
E. Developer's Access to the Project Site
The Developer shall at all times have access to the Project site throughout the
development of the Project.
Facilities Development Agreement, Page 4
® F. Determination of Amounts Due and Owing
Based on the Developer's observations at the site, the Developer shall determine the
amounts owing to the contractor and shall cause the project architect to issue a project
certificate for payment in such amounts, as provided in the contract documents.
G. Rejection of Work
The Developer shall have the authority to reject any and all work which does not conform
to the contract documents, and whenever, in the Developer's reasonable opinion, it is
necessary or advisable for the implementation of the intent of the contract documents, the
Developer shall have the authority to require special inspections or testing of work in
accordance with the provision of the contract documents, whether or not such work has
been fabricated, installed or completed.
H. Review of Drawings, Product Data, and Samples
The Developer shall receive submittals, such as shop drawings, product data and samples,
from the general contractor and shall review and cause the appropriate design
professionals to approve or take other appropriate action upon them, but only for
conformance with the design concept of the Project with the information given in the
contract documents. Such action shall be taken with reasonable promptness so as to
cause no delay. The Developer's approval of a specific item shall not indicate approval
of an assembly of which the item is a component. The Developer shall review and sign
or take other appropriate action on change orders prepared by the contractor for the City's
authorization in accordance with the contract documents.
I. Minor Changes in Work
The Developer shall have the authority to order minor changes in work not involving an
adjustment in a contract sum or an extension of contract time and which are not
inconsistent with the intent of the contract documents.
J. Warranties from Contractor
The Developer shall ensure that the contractor receives and forwards to the City Manager
for review written warranties and related documents assembled by or required to be
delivered by the contractor.
K. City Approvals
The City shall maintain absolute and final authority to approve all architectural and
engineering plans for the Project. The Developer shall coordinate and obtain approval of
the City Manager of all phases of the development process which shall include the
® following:
Facilities Development Agreement, Page 5
L�
• outside consultant selection; .
• architectural design development;
• construction documents;
• construction specifications;
• Project budget;
• contractor selection;
• alternate bid acceptance; and
• change orders.
L. Outside Consultants
The Developer will retain outside consultants to assist with the preparation of the
necessary drawings and specifications for the. Project. These consultants shall possess
academic and professional experience in developments similar to the Project and are
licensed to perform such services in the State of Texas. Prior to commencement of the
Project, Developer will identify the desired consultants and submit their respective
qualifications and the proposed contractor of their services to the City for written
approval, which will not be unreasonably withheld or delayed, prior to engaging, hiring,
consulting with, or contracting with any firm, group of individuals or persons to prepare
drawings and/or specifications or to provide advice relative to the Project.
M. Indemnity
THE DEVELOPER SHALL INDEMNIFY, PROTECT, DEFEND
AND HOLD HARMLESS THE CITY, ITS EMPLOYEES,
OFFICERS, AGENTS, SERVANTS AND REPRESENTATIVES
FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF
ACTIONS, SUITS AND LIABILITY OF EVERY KIND,
INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF
LITIGATION, COURT COSTS AND ATTORNEYS' FEES FOR
INJURY TO OR DEATH OF ANY PERSON OR FOR DAMAGE TO
ANY PROPERTY ARISING OUT OF, AS A RESULT OF, OR IN
ANY WAY RELATED TO THE NEGLIGENCE OF DEVELOPER
IN PERFORMING THE SERVICES PROVIDED BY DEVELOPER
(THE "SERVICES PROVIDED BY DEVELOPER ") PURSUANT TO
THIS AGREEMENT. IT IS THE EXPRESSED INTENTION OF
THE PARTIES HERETO BOTH THE DEVELOPER AND THE
CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY THE DEVELOPER TO
INDEMNIFY, PROTECT AND DEFEND THE CITY FROM (I) THE
CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE WHERE
THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE
INJURY, DEATH OR DAMAGE WITH THAT OF DEVELOPER IN
Facilities Development Agreement, Page 6
PERFORMING IS SERVICES HEREUNDER, AND /OR (II) THE
DEVELOPER'S JOINT AND SOLE NEGLIGENCE.
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY
WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM
THE NEGLIGENCE OF THE CITY UNMIXED WITH THE
NEGLIGENCE OF DEVELOPER IN PEFORMING THE SERVICES
BY DEVELOPER HEREUNDER.
IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST THE CITY BY REASON OF ANY OF THE-- ABOVE, THE
DEVELOPER FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY. The indemnity provided for in this paragraph shall not terminate upon the
expiration or earlier termination of this Agreement but shall remain in full force and
effect.
N. Insurance
Throughout the term of this Agreement, the Developer at its own expense shall purchase,
maintain and keep in force and effect insurance against claims for injuries to or death of
persons or damages to property which may arise out of or result from the Developer's
operations and /or performance of the work under this Agreement, whether such
operations and /or performance be by the Developer, its agents, representatives,
volunteers, employees or subcontractors or by anyone directly or indirectly employed by
any of them, or by anyone for whose acts any of them may be liable.
The Developer's insurance coverage shall be primary insurance with respect to the City,
its officers, agents and employees, including the City. Any insurance or self - insurance
maintained by the City, its officials, agents and employees shall be considered in excess
of the Developer's insurance and shall not contribute to it. Further, the Developer shall
include all subcontractors as additional insureds under its commercial general liability
policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverage for subcontractors shall be subject to all of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum
coverage amounts required in this contract:
1. Commercial General Liability (CGL)
• General Aggregate: $2,000,000
• Owners' and Contractors' Protective Liability: $1,000,000
• Products & Completed Operations Aggregate: $2,000,000
• Personal & Advertising Injury: $1,000,000
• Per Occurrence: $1,000,000
Facilities Development Agreement, Page 7
® a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without
notification of individual exclusions being attached for review and
acceptance.
n
2. Business Automobile Policy (BAP)
• Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
3. Workers' Compensation: Statutory Limits
• Employer's Liability: $500,000
a. Waiver of Subrogation Required.
4. Builders Builder's Risk
• Limit: Not less than 80% of insurable value, replacement cost basis
(exclusive of cost of excavation, foundations, footings below the surface of
the ground and costs of underground flues, pipes and drains).
• "Actual replacement cost" shall be confirmed from time to time (but not more
frequently than once in any twelve (12) calendar months) at the request of
Lessor, by one of the insurers or, at the option of Lessee, by an appraiser,
engineer, architect or contractor approved by the issuer of such insurance
policy and paid by Lessee.
• Coverage for the perils of flood and wind shall be included.
• Lessor shall be named Loss /Payee.
5. Errors and Omissions
• Limit: $1,000,000 per claim and in the aggregate.
• For all architects, engineers, and /or design companies.
• Claims -made form is acceptable..
• Coverage will be in force for three (3) years after construction of the
Project is completed.
Upon execution of this Agreement, Developer shall file with the City valid certificates of
insurance and endorsements acceptable to the City. Such certificates shall contain a
provision that coverage afforded under the policies will not be canceled, suspended,
voided, or reduced until at least sixty (60) days' prior written notice has been given to the
City via certified mail, return receipt requested.
The Developer shall also file with the City valid certificates of insurance covering all
Subcontractors.
The following are general requirements which are applicable to all policies:
AM Best Rating of A:Vll or better.
Facilities Developinent Agreement, Page 8
0 2. Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
3. Liability policies will be on occurrence form. Errors and omissions may be on a
claims -made form.
4. City of Baytown, its officials and employees are to be added as Additional
Insureds to liability policies.
5. Upon request of and without cost to City of Baytown, certified copies of all
insurance policies and/or certificates of insurance shall be furnished to City of
Baytown. Certificates of insurance showing evidence of insurance coverage shall
be provided to City of Baytown prior to execution of this Agreement.
6. Upon request of and without cost to City of Baytown, loss runs (claims listing) of
any and/or all insurance coverage shall be furnished to City of Baytown.
III. COMPENSATION
A. Developer Fee Structure
As compensation of the development services described in Section II for the Project, the
Developer will be paid three and one -half percent (3.5 %) of the Construction Cost for
managing the construction process on the City's behalf. In addition, Developer will
receive one percent (1 %) of the Total Project Cost as a development fee to coordinate all
facets of the Project.
B. Outside Consultants Compensation
The Developer will retain, under this Agreement, architectural and engineering firms to
assist the Developer with the Project. Each designated firm's compensation package,
once negotiated by the Developer, will be submitted to the City for written approval,
which will not be unreasonably withheld or delayed. It is understood and agreed that the
total cost for these services will not exceed six and one -half percent (6.5 %) of the
Construction Cost, unless otherwise approved in writing by the City, together with
reimbursable expenses.
C. Project Budget/Retainage
The aforementioned Developer's fee and outside consultant's fee will be included in the
Project Budget which will be submitted to the City for its written approval and then
forwarded on to the City's financing source for formulation of a construction draw
schedule. There shall be withheld from the Developer, retainage in the amount of five
percent (5 %) of the reimbursements and fees due Developer hereunder. All contracts for
design and construction shall state the City shall retain five percent (5 %) of each invoice
f=acilities Development Agreement, Page 9
•
as retainage. The retainage shall be released upon satisfactory completion of the specific
construction activities or services.
D. Timing of Payment
Payments due to the Developer and any outside consultant shall be calculated in
accordance with this article and shall be made within thirty (30) days from the receipt of
the services or within thirty (30) days from the receipt of an appropriate invoice for the
same, whichever is later. The Developer agrees that it may submit no more than one
invoice per month for payment by the City. Each progress billing shall be accompanied
by a narrative summary identifying the status of the Project; and in no event shall the
total amount of progress payments exceed the percentages specified hereinabove. The
City and the Developer reserve the right to request additional supporting documentation.
Should additional information or documentation be required by the City, the Manager
shall comply promptly with such demand and the period of time in which the City is
required to tender payment shall be tolled until the City receives all requested
information. Additionally, the City reserves the right to correct any error that may be
discovered in any invoice that may have been paid to the Developer or any outside
consultant and to adjust the same to meet the requirements of this Agreement. Following
approval of invoices, the City will endeavor to pay the Developer and/or any outside
consultant promptly; however, under no circumstances shall the Developer or any outside
consultant receive interest on amounts due.
E. Right To Withhold Compensation
The City has the right to withhold from the Developer's and any outside consultant's
compensation any monies due the City by the Developer or outside consultant
respectively.
IV. UTILITIES
The City will provide underground water, sewer and electrical utilities of sufficient size
to accommodate all of the Project in accordance with the City's Code of Ordinances as
determined by the City's Chief Building Official. Such utility connections and infrastructure
provided by the City shall extend to the Project.
V. GOVERNING LAW AND VENUE
This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas and the City, regardless of the place of its execution
or performance. The place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas.
Facilities Development Agreement, Page 10
VI. NO RIGHT OF ARBITRATION
Notwithstanding anything to the contrary or apparent contrary contained in this
Agreement, the City and Developer agree that no claims or disputes between the City and
Developer arising out of or relating to this Agreement to any of the work shall be decided by any
arbitration proceeding including, without limitation, any proceeding under the Federal
Arbitration Act (9 U.S.C. §§ 1 -14) or any applicable state arbitration statute, including, but not
limited to, the Texas General Arbitration Act, Texas Revised Civil Statutes, Title 10, articles 224
through 249 -43, provided that in the event that the City is subject 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 the City for complete relief to be recorded in
the arbitration proceeding.
VII. ASSIGNMENT
The Developer's rights under this Agreement are not assignable, unless the Developer
obtains the City's prior written consent to such assignment, which consent will not be
unreasonably withheld or delayed. Any attempted assignment in which the City's prior written
consent was not obtained shall be void and shall render this Agreement voidable at the election
of the City.
VIII. NO THIRD PARTY BENEFICIARIES
This Agreement shall not bestow any rights upon any third party, but rather, shall bind
and benefit the Developer and the City only.
IX. ENTIRE AGREEMENT
It is understood that this Agreement contains the entire agreement between the parties
and supercedes any and all prior agreements, arrangements or understandings between the parties
relating to the subject matter. No oral understandings, statements, or promises shall be binding
on the parties hereto, unless the same are reduced to writing and validly executed by both parties.
No verbal agreement or conversation with any officer, agent, or employee of the City, either
before or after the execution of this Agreement, shall affect or modify any of the terms or
obligations hereunder.
X. RELEASE
The City, by this Agreement, does not give consent to litigation and the City hereby
expressly revokes any consent to litigation that it may have granted by terms of this Agreement,
charter or applicable state law. The Developer assumes full responsibility for the work to be
is performed by it hereunder (but not the services of the outside consultants or the services
Facilities Development Agreement, Page I I
® provided by the contractors) and releases, relinquishes and discharges the City, its officers,
agents, representatives, 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
employee, officer, or agent of either of the parties hereto and any loss of or damage to property
(whether the same be that either of the parties hereto or of third parties) caused by or alleged to
be caused, arising out of, or in connection with the Developer's work and/or services to be
performed hereunder, whether or not said claims, demands, and causes of action in whole or in
part are covered by insurance.
XI. WAIVER
Failure of any party, at any time, to enforce a provision of this Agreement shall in no way
constitute a waiver of that provision, nor in any way affect the validity of this Agreement or any
part hereof or the right of the City hereafter to enforce each and every provision hereof, No term
of this Agreement shall be deemed waived or breached excused unless the waiver shall be in
writing and signed by the party claimed to have waived the same. Furthermore, any consent to
or waiver of a breach will not constitute consent to or waiver of or excuse of any other different
or subsequent breach.
XI I. SEVERABILITY
All parities agree that should any provision of this Agreement be determined to be invalid
or unenforceable, such determination shall not affect any other term of this Agreement which
shall continue in full force and effect.
XIII. SAFETY AND HEALTH STANDARDS
The Developer shall examine the contractor for compliance with the Texas Occupational
Safety Act and with all safety and health standards promulgated by the Secretary of Labor under
Section 107 of the Contract Work Hours and Standards Act, published in 29 C.F.R. Part 1926
and adopted by the Secretary of Labor as occupational safety and health standards under the
Williams- Steigner Occupational Safety and Health Act of 1970, and to any other legislation
enacted for the safety and health of the Contractor's employees Such safety and health standards
shall apply to all subcontractors and their employees as well to the contractors and their
employees.
XIV. CONFLICTS OF INTEREST
The Developer shall exercise reasonable care and diligence to prevent any actions or
conditions which could result in a conflict with the City's best interests. This obligation shall
® apply to the activities of the employees and agents of the Developer in their relationship with
their employees and their families of the City and of their parties arising from this Agreement
Facilities Development Agreement, Page l2
® and accomplishing services hereunder. Both parties' efforts shall include, but not be limited to,
establishing precautions to prevent its employees or agents from making, receiving, providing or
offering substantial gifts, extravagant entertainment, payments, loans or other considerations of
the purpose of influencing individuals to act contrary to the City's best interest.
XV. AUDIT RIGHTS BY CITY
The City's duly authorized representative shall have access at all reasonable times to all
contractor's and subcontractor's personnel job descriptions, employment and qualification
record, books records and correspondence, instructions, plans, drawings, receipts, vouchers, data
stored in computers, and memoranda of evdry description pertaining to the work under this
Agreement for the purpose of auditing and verifying cost of work or for any other reasonable
purpose. The City's representatives shall have the right to obtain copies of any documents
pertaining in any way to the Project from the Developer within ten (10) days after a written
request for the same. All records of accounts between the City and the Developer and all other
accounts which pertain in any way to the Project shall be kept in accordance with Generally
Accepted Accounting Principles /Standards. The Developer shall preserve and shall require its
contractors and subcontractors to preserve all aforesaid. documents for a period four (4) years
after completion and acceptance or termination of the work.
XVT. WARRANTY
Developer hereby warrants to the City that Developer shall use its best skill and judgment
in performing the Developer's services hereunder. Notwithstanding anything to the contrary or
apparent contrary contained elsewhere in this Agreement, all warranties of the Developer
contained in the Agreement shall be in addition to, and not in lieu of, the City's claims and rights
at law which shall continue for the applicable statute of limitations period with respect to any
default, defective, non - complying or incomplete work.
XVII. FUGITIVE EMISSIONS
Fugitive emissions, such as road dust and dust generated by construction activities, must
be controlled by wetting procedures and kept to a minimum.
XVIII. HISTORICAL AND ENVIRONMENTAL COMPLIANCE
Developer agrees to comply with and require all contractors and subcontractors to
comply with all applicable laws, relations, orders and guidance administered by the City as well
as any governmental agency with jurisdiction. The matters covered by this paragraph include,
without limitation, discharges of waste to air, water or land, solid waste disposal, and
management of hazardous substances. Developer shall comply with all laws of the State of
Texas concerning the preservation of historical sites.
Facilities Development Agreement, Page 13
0
XIX. COMPLIANCE WITH CITY DIRECTIONS
Developer agrees that when the Developer or its employees agents or subcontractors are
on or in the City's site, buildings or grounds at the Project site, the Developer, his employees,
agents and/or subcontractors shall comply with the City's directions, rules and regulations for
Developer's or City's employees on the site. The Developer agrees to cause the general
contractor be responsible for the removal of any and all wastes from City's site and to provide
for disposal which is proper and in compliance with applicable federal, state and local laws and
regulations.
XX. PROJECT SCHEDULE
A. Project Schedule
The Developer covenants to perform the work and services required herein in a timely
manner in accordance with the schedule, which is attached hereto as Exhibit "B" and
incorporated herein for all intents and purposes. The Developer shall use its diligent
efforts to cause the development of the Project to occur in accordance with such schedule
and shall notify the City Manager in writing immediately should the development of the
Project be delayed for any reason so as not to be in compliance with the schedule.
B. Force Majeure
Neither the City nor the Developer shall be required to perform any term, condition or
covenant of this agreement so long as performance is delayed or prevented by force
majeure, which shall mean acts as God, drought, floods, material or labor restrictions by
any governmental authority, and any other cause not reasonably within the control of
either party in which, by the exercise of due diligence, the City or the Developer is unable
to prevent or overcome. All reasonable efforts shall be undertaken to mitigate effects of
such delay or failure to perform.
XXI. INTENT OF THE PARTIES
It is the intent of the parties to this Agreement that there is no relationship of partnership
nor joint venture created by this Agreement, that there is no fiduciary relationship created and
that any relationship between the parties is entirely contractual in nature and manifested by this
Agreement.
Facilities Development Aryreement, Page 14
0 XXII. TERMINATION
Both the Developer and the City hereby agree that this Contract may only be terminated
by the Developer for cause, which shall be defined as a breach of any of the provisions of this
Agreement or of any violation of law or order by the City. Such termination will become
effective upon giving thirty (30) days' written notice to the City unless such default is cured by
the City. The City may terminate this Agreement at any time with cause, which shall be defined
as a breach of any of the provisions of this Agreement which are specifically referenced herein,
such termination to be effective thirty (30) days following such written notice unless cured by
Developer. The City may terminate this Agreement at any time without cause upon a finding by
the City Manager that the public health, safety and/or welfare demand such result.
Notwithstanding any termination by the City without cause, the City shall pay to the Developer
the proportion of the Developer's fees earned through the date of termination and reimburse
Developers for costs accrued through the date of termination (but in no event shall the amount of
such costs exceed, when added to all prior reimbursement costs paid hereunder, three and one -
half percent (3.5 %) of the anticipated construction costs).
XXIII. CONTINGENCY
Reference is here made to that certain Ground lease ( "Ground Lease ") of even date
herewith executed by and between the City as lessor and Developer as lessee. Notwithstanding
any contrary provision of this Agreement, the City shall have the right and option to terminate
this Agreement if the City (or the Developer) terminates the Ground Lease. In the event of such
termination hereof, the City shall pay to Developer the portion (if any) of Developer's fees
earned through the date of such termination (but in no event shall the amount of such cost
exceed, when added to all prior cost reimbursements paid hereunder, three and one -half percent
(3.5 %) of the anticipated construction costs).
XXIV. NOTICES
All notices required to be given hereunder shall be given in writing either by telecopter,
overnight or facsimile transmission, certified or registered mail at the respective addresses of the
parties set forth herein or at such other address as may be designed in writing by the party.
Notice given by mail shall be deemed delivered three (3) days after the date of mailing thereof to
the following addresses:
Developer
Edmundson Interests, L.L.C.
Attn: President
P.O. Box 130713
Houston, Texas 77219 -0713
Fax (Ili) 523 -7555
Facilities Development Agreement, Page 15
® city _
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522
Fax (281) 420 -6586
•
XXV, HEADINGS
The article headings are used in this Agreement for convenience and reference purposes
only and are not intended to define limit or describe the scope or intent of any provision of this
Agreement and shall have no meaning or effect upon its interpretation
XXVI. AUTHORITY TO ENTER CONTRACT
Each party has 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
employed to enter into this Agreement. The persons executing this Agreement hereby represent
that they have authorization to sign on behalf of his respective corporation.
XXVII. AGREEMENT READ
The parties acknowledge that they have read, understand and intend to be bound by the
terms and conditions of this Agreement.
XXVIII. AMBIGUITIES
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.
XXIX. 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.
Facilities Development Agreement, Page 16
•
fN WITNESS WHEREOF, the undersigneds have executed this Agreement as of the date
and year first above written.
ED DSON INTERESTS, L.L.C.
B /
WILLIAM L. EDKIUAIDSON, III, President
CITY OF BAYTOWN, TEXAS
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
IGVACIO RAMIREZ, S ., City Attorney
STATE OF TEXAS §
COUNTY OF HARRIS §
PETE C. ALFARO, Mayor
Before me, %�,,,, n� 3 &yj5j`e1. ,the undersigned notary public, on this day
personally appeared William L. Edmundson, III, in his capacity as President of Edmundson
Interests, L.L.C., on behalf of such corporation,
known to me;
proved to me on the oath of ; or
Facilities Development Agreement, Page 17
0 proved to me through his current n L 1) .3 Q q � Q6 f� s
(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)
(./ one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed that instrument,for the purposes and consideration therein expressed.
Given under my hand and seal of office this Z day of S
199Z.
ER.
',tiUA11R1Y`020`;``�
NotaJublic in and for the State of
Tex
My commission expires: I - Z
0 c:klhl10% Contractsl Edmundson[ nterestsl PhasellDevelopmentAgreement .Edrnundsonlntcrests092498
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