Ordinance No. 9,375ORDINANCE NO. 9375
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 AN AGREEMENT BETWEEN THE
BAYTOWN My UNICIPAL DEVELOPMENT DISTRICT AND THE CITY OF
BAYTOWN TO PROVIDE FUNDING FOR THE DESIGN, ENGINEERING
AND DEVELOPMENT OF THE BAYTOWN NATURE CENTER
ENTRYWAY PROJECT; 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 hereby authorizes the City
Manager to execute and the City Clerk to attest to an agreement for the funding for the design,
engineering and development of the Baytown Nature Center Entryway Project with the Baytown
Municipal Development District. A copy of the Agreement is attached hereto as 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 11`h day of July, 2002.
ATTEST:
GAY t. SMITH, City Clerk
APPROVED AS TO FORM:
TE&ACIO RAMIREZ, W., City Attorney
FAKarenTiles \City Council \Ordinances \CityMDDEntryway.doc
PETE C. ALFARO, Mayor
AGREEMENT FOR THE DESIGN, ENGINEERING AND DEVELOPMENT
OF THE BAYTOWN NATURE CENTER ENTRYWAY PROJECT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement for the Design, Engineering and Development of the Baytown Nature Center
Entryway Project (the "Agreement ") is made as of the 11`h day of July, 2002, 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, created under
Chapter 377 of the Texas Local Government Code, as amended; (the "Act ") and located in Harris
and Chambers Counties, 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 plan,
acquire, establish, develop, construct and/or renovate one or more development
projects beneficial to the District, which includes the incorporated limits of the City
lying within Harris County.
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 enter into necessary
agreements for the design, engineering and development of the Baytown Nature Center (the
"Project "). More specifically, the Project will include the following:
9 approximately 4,500 by 11 linear feet wide of new roadway;
➢
14 -space parking lot;
➢
a restroom;
➢
guard station facility;
9
gated entry;
➢
fencing;
➢
a water feature along the entry; and
➢
a quarter acre pond.
Agreement for the Design, Engineering and Development of EMIT A
the Baytown Nature Center Entryway Project, Page 1
The City shall with the funds provided by the District, prepare or have prepared engineering
information, including, but not limited to, environmental documentation and clearances, design
plans, specifications and estimates; bid documents and contracts; and have the project constructed
according to the plans and specifications approved by the City.
Section 3. 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. Approvals.
The District understands, hereby directs authorizes the City to approve all plans and
specifications on its behalf for the Proj ect and to make any Proj ect clarifications and/or modifications
as may be necessary as determined by the City in its sole discretion.
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 this
Agreement, the District shall tender funds to the City in an amount not to exceed SIX HUNDRED
SIXTY -FIVE THOUSAND AND NO /100 DOLLARS ($665,000.00) as follows:
`Fiscal Year 2001 -02 I ' - .,Fiscal'Year'2002- 03"7.',
An amount not to exceed 1 $450,000.00 1 $215,000.00 1
For any funding beyond the current fiscal year, the District reserves the right to terminate this
Agreement by giving the City thirty (30) days' written notice, without liability to the District, in the
event that funding for this Agreement is discontinued or is no longer available. The District's fiscal
year runs from October 1" to September 30`h.
Unless otherwise provided, all payments required to be made herein shall be payable on or
before 30 days after the District receives an invoice therefore from the City.
Section 6. Term.
This Agreement shall be effective for a period commencing on the date first mentioned
above, and ending 30 days after final completion and acceptance of the improvements by the City,
• unless sooner terminated by either party hereto pursuant to the terms hereof.
Agreement for the Design, Engineering and Development of
the Baytown Nature Center Entryway Project, Page 2
® Section 7. Termination for Cause.
•
A party may terminate its performance under this contract 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 30`h 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 or has commenced the cure
of the default, or (2) such termination may be stayed, at the sole option of the party against whom the
default has occurred, pending cure of the default.
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,
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 previouslypaid
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.
Upon termination of this Agreement pursuant to Section 7 hereof due to an uncured default
by the District, the District hereby agrees to pay the total amount committed in Section 5 hereof on
or before the effective date of the termination.
Agreement for the Design, Engineering and Development of
the Baytown Nature Center Enuyway Pro jec Page 3
0 Section 10. Parties in Interest.
This contract shall bind and benefit the City and the District 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 ofBaytown 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.
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, Texas 77522 -0424
• Fax: (281) 420 -6586
Agreement for the Design, Engineering and Development of
the Baytown Nature Center Entryway Project, Page 4
•
Ci
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.
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.
Agreement for the Desim. Engineering and Development of
the Baytown Nature Center Entryway Proiect, Page 5
0 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
GARY JACKSON, City Manager
ATTEST:
GARY W. SMITH, City Clerk
BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT
PETE C. ALFARO, President
ATTEST:
GARY W. SMITH, Assistant Secretary
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AgIcement for the Design, Engineering and Development of
the BaVtown Nature Center EnqMay Project Page 6