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Ordinance No. 9,264El ORDINANCE N0. 9264" 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 AN AGREEMENT TO PROVIDE LOCAL MATCH FUNDING FOR THE CONGESTION MITIGATION AIR QUALITY GRANT FOR GOOSE CREEK STREAM GREENBELT, PHASE IV; 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 to execute and the City Clerk to attest to an Agreement to provide local match funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase N. 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 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 6`i' day of November, 2001. ATTEST: G4. j' W S H; City Clerk APPROVED AS TO FORM: a6WACIO RAMIREZ, SR., ty ttorney c:Udh280\ Council\ Ordinance \MDDCouncilAgreementOrdinance oed� C &�� — PETE C. ALFARO, Ma or ® AGREEMENT TO PROVIDE LOCAL MATCH FUNDING FOR THE CONGESTION MITIGATION AIR QUALITY GRANT FOR GOOSE CREEK STREAM GREENBELT, PHASE IV STATE OF TEXAS § COUNTY OF HARRIS § This Agreement to provide local match funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV (the "Agreement ") is made as of the 6th day of November, 2001, by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, (the "City, ") and the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a political subdivision of the state and of the City of Baytown, created under Chapter 377 of the Texas Local Government Code, as amended, (the "Act ") and located in Harris County, Texas, (the "District "). For and in consideration of the mutual covenants herein contained, it is agreed as follows: Section 1. Representations and Warranties of District. a) The District is engaged in an on -going effort to provide new resources to not only plan, acquire, establish, develop, construct or renovate one or more development projects within or beneficial to its territory. b) The District covenants that it shall actively work to productively coordinate its activities with the City in an effort to reduce duplication of services. C) The District represents and warrants that it has been properly created and is duly authorized pursuant to the Act to enter into this Agreement. Section 2. Description of Program. The City, with the assistance of the District as herein specified, agrees to develop, organize and manage. the following program, including entering into and administering all contracts incident thereto: a) Bike and Hike Trail. This program will create a bike and hike trail along Goose Creek as depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. The program will be a project of both the State of Texas, acting by and through the Texas Department of Transportation (the "State ") and the City and will be in accordance with the terms of the contract entered into for such purpose. According to such contract, (i) the State will secure federal funds, review engineering, review plans, ® specifications and estimates, let the construction contract, provide the Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV, Page 1 A ® construction inspection, provide all necessary and required environmental mitigation in State right -of -way, and provide other items as required; and (ii) the City shall with the funds provided by the District, and such funds shall be used to prepare or have prepared preliminary engineering information, including, but not limited to, environmental documentation and clearances, public involvement, all necessary and required environmental mitigation, design plans, specifications and estimates; accomplishing the adjustment of utilities, acquisition of right -of -way and providing other necessary items required. n U Section 3. Program Reports. The City shall prepare and submit to the District within 30 days after the end of each fiscal year during the term of this Agreement a verbal or brief written report describing the services performed by the City pursuant to this contract during the previous year along with a summary of expenditures for the previous fiscal year. Section 4. Changes and Clarifications a) The City understands and agrees that program clarification and/or modifications may be made in writing by the District's Board at any time; provided, that such clarification or modification is neither contrary to the purposes expressed in this Agreement nor contrary to the contract between the City and the State for the construction of the Goose Creek Stream Greenbelt, Phase IV, as determined by the City. Additionally, no clarifications or modifications can be made to the funding of the program without the express written consent of the City, as the City has expressly relied on the District's commitment to provide the local match when the City entered into the agreement with the State. As soon as reasonably practicable after the receipt of any such clarification or modification, the City will make the necessary changes to comply. b) Plans and specifications for the trail shall be approved by the District or its designee prior construction being advertised for bids, and may not be thereafter changed by the District to increase the price unless the District provides additional funds therefor. Likewise once the plans and specifications are approved by the District, the City may not thereafter make changes to the same which would increase the construction price unless the City provides the necessary funds therefor and the City has obtained the approval of the District. Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV, Page 2 n Section 5. Funds to be provided by the District. For and in consideration of the services to be provided by the City in furtherance of the District's program listed in Section 2, the District shall provide funds in the amount of THREE HUNDRED FIFTY THOUSAND AND NO /100 DOLLARS ($350,000.00) to the City as follows: Bud t;1 Year 2001 -2002 $50,000.00 2002 -2003 $150,000.00 2003 -2004 $150,000.00 Unless otherwise provided, all p before 30 days after the District receives Act from the state comptroller. Section 6. Term. This Agreement shall be effectiv above, and ending one year after final corr. party hereto pursuant to the terms hereof. Section 7. Termination for Cause. cents required to be made herein shall be payable on or sales and use tax levied pursuant to the provisions of the for a period commencing on the date first mentioned .etion of the program, unless sooner terminated by either A party may terminate its performance under this Agreement only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this Agreement required to be performed or observed by that party. Should such a default occur, the party against whom the default has occurred shall have the right to terminate all or part of its obligations under this contract as of the 30th day following the receipt by the defaulting party of a notice describing such default and intended termination, provided: (1) such termination shall be ineffective if within said 30 -day period the defaulting party cures the default, (2) such termination may be stayed, at the sole option of the party against whom the default has occurred, pending cure of the default, or (3) the funds have been committed by the City via an agreement which cannot be terminated without cause. Upon the termination of this Agreement, both parties shall be relieved of their respective obligations herein stated. This Agreement shall not be subject to termination for convenience. Section 8. Force Majeure. Any prevention, delay, nonperformance, or stoppage due to any of the following causes shall excuse nonperformance for the period of any such prevention, delay, nonperformance, or stoppage, Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV, Page 3 ® except the obligations imposed by this Agreement for the payment of funds allocated for the District's programs. The causes referred to above are strikes, lockouts, labor disputes, failure of power, acts of God, acts of public enemies of this State or of the United States, riots, insurrections, civil commotion, inability to obtain labor or materials or reasonable substitutes for either, governmental restrictions or regulations or controls, casualties or other causes beyond the reasonable control of the party obligated to perform. Section 9. Refund and Payment upon Termination. Upon termination of this Agreement pursuant to Section 7 hereof due to an uncured default by the City, the City hereby agrees to refund all unexpended, unappropriated monies previously paid by the District to the City pursuant to this Agreement. If at the time of termination the District owes the City monies, the District shall remit to the City the appropriate amount computed as of the effective date of the termination. Section 10. Parties in Interest. This contract shall bind and benefit the City and the Association and shall not bestow any rights upon any third parties. Section 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 performance. Section 12. Compliance with Applicable Laws. The parties hereto shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. Section 13. Choice of Law; Venue. This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris County, Texas. Aereement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV, Page 4. Section 14. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending party: District Baytown Municipal Development District Attn: President, Board of Directors P.O. Box 424 Baytown, TX 77522 Fax: (281) 420 -6586 Q!Y City of Baytown Attn: City Manager P. O. Box 424 Baytown, Texas 77522 -0424 Fax: (281) 420 -6586 Section 15. Audits. The City and the District may, at any reasonable time, conduct or cause to be conducted an audit of the other parties' records and financial transactions. The cost of said audit will be borne by the entity requesting the audit. The City and the District shall make available all of its records in support of the audit. Section 16. 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. Section 17. Captions. The captions of the sections and subsections, if any, of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part or parts of this Agreement. Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt, Phase IV Page 5 Section 18. Entire Agreement. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. Any oral representations or modifications concerning this instrument are of no force or effect excepting a subsequent modification in writing signed by all the parties hereto. Section 19. Assignment or Transfer of Rights or Obligations. The City shall not sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the District. Section 20. Severability. All parties 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. Section 21. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he /she represents. IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies, each of which shall be an original. CITY OF BAYTOWN BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT MONTE MERCER, City Manager ATTEST: GARY W. SMITH, City Clerk PETE C. ALFARO, President ATTEST: GARY W. SMITH, Secretary ® c: IdH280\ Cmtracts\ MDDAgeementGooseCreekStream \Agreement4GooseCreekStream Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt. Phase N, Page 6 C l y i ' LU IL lit Ci IL t— UP uj o I � O �s ttii t l l -j< a W z.11& C, 7.00 CYi Chi• r Ey_! a. Zt �` t .rt �'z r 'Isi Q� LL O O CV j 01 O� r CD 0 i r XF_i Lo:Tr TO /oTFIT J a .� � �1 W cr) r N W Y m W = = LL, V � > Q (A tQ H �UJ O j O cn O O o C� U. XF_i Lo:Tr TO /oTFIT AGREEMENT TO PROVIDE LOCAL MATCH FUNDING FOR THE CONGESTION MITIGATION AIR QUALITY GRANT FOR GOOSE CREEK STREAM GREENBELT, PHASE IV STATE OF TEXAS § COUNTY OF HARRIS § This Agreement to provide local match funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase IV(the"Agreement")is made as of the 6th day of November, 2001,by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, (the "City,") and the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a political subdivision of the state and of the City of Baytown, created under Chapter 377 of the Texas Local Government Code, as amended, (the "Act") and located in Harris County,Texas,(the"District"). For and in consideration of the mutual covenants herein contained, it is agreed as follows: Section 1. Representations and Warranties of District. a) The District is engaged in an on-going effort to provide new resources to not only plan, acquire, establish, develop, construct or renovate one or more development projects within or beneficial to its territory. b) The District covenants that it shall actively work to productively coordinate its activities with the City in an effort to reduce duplication of services. c) The District represents and warrants that it has been properly created and is duly authorized pursuant to the Act to enter into this Agreement. Section 2. Description of Program. The City,with the assistance of the District as herein specified, agrees to develop,organize and manage the following program,including entering into and administering all contracts incident thereto: a) Bike and Hike Trail. This program will create a bike and hike trail along Goose Creek as depicted in Exhibit"A,"which is attached hereto and incorporated herein for all intents and purposes. The program will be a project of both the State of Texas, acting by and through the Texas Department of Transportation(the"State")and the City and will be in accordance with the terms of the contract entered into for such purpose. According to such contract, (i) the State will secure federal funds, review engineering, review plans, specifications and estimates, let the construction contract, provide the Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase IV,Page 1 construction inspection, provide all necessary and required environmental mitigation in State right-of-way, and provide other items as required; and (ii) the City shall with the funds provided by the District,and such funds shall be used to prepare or have prepared preliminary engineering information, including,but not limited to, environmental documentation and clearances, public involvement, all necessary and required environmental mitigation, design plans, specifications and estimates;accomplishing the adjustment of utilities, acquisition of right-of-way and providing other necessary items required. Section 3. Program Reports. The City shall prepare and submit to the District within 30 days after the end of each fiscal year during the term of this Agreement a verbal or brief written report describing the services performed by the City pursuant to this contract during the previous year along with a summary of expenditures for the previous fiscal year. Section 4. Changes and Clarifications a) The City understands and agrees that program clarification and/or modifications may be made in writing by the District's Board at any time; provided, that such clarification or modification is neither contrary to the purposes expressed in this Agreement nor contrary to the contract between the City and the State for the construction of the Goose Creek Stream Greenbelt, Phase IV, as determined by the City. Additionally,no clarifications or modifications can be made to the funding of the program without the express written consent of the City,as the City has expressly relied on the District's commitment to provide the local match when the City entered into the agreement with the State. As soon as reasonably practicable after the receipt of any such clarification or modification,the City will make the necessary changes to comply. b) Plans and specifications for the trail shall be approved by the District or its designee prior construction being advertised for bids,and may not be thereafter changed by the District to increase the price unless the District provides additional funds therefor. Likewise once the plans and specifications are approved by the District,the City may not thereafter make changes to the same which would increase the construction price unless the City provides the necessary funds therefor and the City has obtained the approval of the District. Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase N,Page 2 Section 5. Funds to be provided by the District. For and in consideration of the services to be provided by the City in furtherance of the District's program listed in Section 2, the District shall provide funds in the amount of THREE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($350,000.00)to the City as follows: Budget Year Amount 2001-2002 $50,000.00 2002-2003 $150,000.00 2003-2004 $150,000.00 Unless otherwise provided, all payments required to be made herein shall be payable on or before 30 days after the District receives the sales and use tax levied pursuant to the provisions of the Act from the state comptroller. Section 6. Term. This Agreement shall be effective for a period commencing on the date first mentioned above,and ending one year after final completion of the program,unless sooner terminated by either party hereto pursuant to the terms hereof. Section 7. Termination for Cause. A party may terminate its performance under this Agreement only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this Agreement required to be performed or observed by that party. Should such a default occur,the party against whom the default has occurred shall have the right to terminate all or part of its obligations under this contract as of the 30th day following the receipt by the defaulting • party of a notice describing such default and intended termination,provided: (1) such termination shall be ineffective if within said 30-day period the defaulting party cures the default, (2) such termination may be stayed, at the sole option of the party against whom the default has occurred, pending cure of the default, or (3) the funds have been committed by the City via an agreement which cannot be terminated without cause. Upon the termination of this Agreement, both parties shall be relieved of their respective obligations herein stated. This Agreement shall not be subject to termination for convenience. Section 8. Force Majeure. Any prevention,delay,nonperformance,or stoppage due to any of the following causes shall excuse nonperformance for the period of any such prevention,delay,nonperformance,or stoppage, Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase IV,Page 3 except the obligations imposed by this Agreement for the payment of funds allocated for the District's programs. The causes referred to above are strikes, lockouts, labor disputes, failure of power, acts of God, acts of public enemies of this State or of the United States,riots,insurrections, civil commotion, inability to obtain labor or materials or reasonable substitutes for either, governmental restrictions or regulations or controls,casualties or other causes beyond the reasonable control of the party obligated to perform. Section 9. Refund and Payment upon Termination. Upon termination of this Agreement pursuant to Section 7 hereof due to an uncured default by the City,the City hereby agrees to refund all unexpended,unappropriated monies previously paid by the District to the City pursuant to this Agreement. If at the time of termination the District owes the City monies, the District shall remit to the City the appropriate amount computed as of the effective date of the termination. Section 10. Parties in Interest. This contract shall bind and benefit the City and the Association and shall not bestow any rights upon any third parties. Section 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 performance. Section 12. Compliance with Applicable Laws. The parties hereto shall comply with all rules,regulations, and laws of the United States of America,the State of Texas,and all laws,regulations,and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. Section 13. Choice of Law; Venue. This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris County, Texas. Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase N,Page 4 • Section 14. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed(certified mail,return receipt requested) addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending party: District Baytown Municipal Development District Attn: President,Board of Directors P.O. Box 424 Baytown, TX 77522 Fax: (281)420-6586 City City of Baytown Attn: City Manager P. O. Box 424 Baytown, Texas 77522-0424 Fax: (281) 420-6586 Section 15. Audits. The City and the District may, at any reasonable time, conduct or cause to be conducted an audit of the other parties'records and financial transactions. The cost of said audit will be borne by the entity requesting the audit. The City and the District shall make available all of its records in support of the audit. Section 16. 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. Section 17. Captions. The captions of the sections and subsections, if any, of this Agreement are for convenience and ease of reference only and do not define,limit, augment or describe the scope,content or intent of this Agreement or of any part or parts of this Agreement. Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase N,Page 5 Section 18. Entire Agreement. This Agreement contains'all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. Any oral representations or modifications concerning this instrument are of no force or effect excepting a subsequent modification in writing signed by all the parties hereto. Section 19. Assignment or Transfer of Rights or Obligations. The City shall not sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the District. Section 20. Severability. All parties 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. Section 21. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies, each of which shall be an original. CITY OF BAYTOWN BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT 4,c4, M�NTE MERCER, City Manager PETE C. ALFARO, President ATTEST: ATTEST: • z .41,,k)( G •` . SMITH, City Clerk G W. SMITH, Secretary_ c:k1H280\Contracts\MDDAgreementGooseCreekStream\Agreement4GooseCreekStream Agreement to provide Local Match Funding for the Congestion Mitigation Air Quality Grant for Goose Creek Stream Greenbelt,Phase IV,Page 6 • c. �wr SCEtvi4 League of Al.-_.. N `` '.\ ijN I \ \WomenVoters\�- \__:-/-- ot \i/ Park \WE r: -' cl W-414F E _______-----. \\ • li/I j-!(/ NORT•HWOOD Imo,--r— O fe A. .�KELLY - 1 i pw A`i ______,.. 330 ~� ! HAfOI.D La •__I'_ l i 0NG. ..n...,____,423 ______„:: N.. `�_ END PROJECT _;_-----. t-��� —� /` \\` -- SCHIWN--G—_ r.____.- - --r __I-__ . • // �r f`� z �`c ',�/ / r ' �• \;•• . O _ELL �.._--�} — ._`§L PA__! F A_NA�Nti �'� ) i \ . / I — ! t FRANCIS. _._�Qi GI P1 ! .' �P t- 071AN —a w��uRN Z H1N BAYTOWN ,� Fq // ��, ! r,..... / 7 ...\X, 1 ç4ki 4; PO OOQ- ; I --, Pv) ! /Q ..0 FLEElVV00--...l l_ / h.: { �/�sji. ���K�T N:a It:t --C--L-oslT__�_-_-1 4i_:749o�,Fl� j/-U &*16. f � R�/ • fr///Q;c40-��4�q `�� \ -• pit_Dfi-A.E�_t 1- 9L¢ `�"/!//�-,.,7 r7 41= ( II/ ' i(`T A F / eek r BEGIN PROJECT 'p. w! ._ Q/ Gt ...`�` jTant-y—__�, _��rJC !�C ��mJJ Q �'I �N,=}{�� / l ,-'_1 /7l1" Ir fit.- � C7/�..L r� 7 -"( ,w EXHIBIT A CSJ 0912-71-697 0 100 0 1000 2000 Feet GOOSE CREEK HIKE & BIKE TRAIL _0 From West Texas Ave to Garth Rd ros rPopartmerd r City of Baytown