Ordinance No. 9,418ORDINANCE NO. 9418
• 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 MUNICIPAL DEVELOPMENT DISTRICT AND THE CITY OF
BAYTOWN TO PROVIDE FUNDING FOR THE DESIGN, ENGINEERING,
AND DEVELOPMENT OF THE WAYNE GRAY SPORTS COMPLEX PROJECT;
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 hereby authorizes the City
Manager to execute and the City Clerk to attest to an agreement with the Baytown Municipal
Development District -for funding for the design, engineering, and development of the Wayne
Gray Sports Complex Project. 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 12`h day of September, 2002.
/� C_ "_A�
PETE C. ALFARO, Mayor
ATTEST:
it
G W. SMITH, City Clerk
APPROVED AS TO FORM:
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® AGREEMENT FOR THE DESIGN, ENGINEERING, AND
DEVELOPMENT OF THE
WAYNE GRAY SPORTS COMPLEX PROJECT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement for the Design, Engineering, and Development of the Wayne Gray
Sports Complex Project (the "Agreement') is made as of the 22"d day of August, 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 an
architectural services agreement for the design, engineering, and development of the Wayne
Gray Sports Complex Project, which shall include renovation of the existing playing fields;
construction of new playing fields and courts; construction of a central pavilion building; site
lighting; parking and roadways; utility construction; landscaping and water features (the
"Project ").
The City shall with the funds provided by the District, enter into a contract for architectural
services, including, but not limited to, master planning and final project scoping, and
professional services for the design phase, schematic design phase, design development phase,
construction document phase, bidding phase and contract administration phase.
Agreement for the Design, Engineering, and Development
of the Wayne Gray Sorts Com lex Project, Page 1 001T A
• 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 and authorizes the City to approve all plans and
specifications on its behalf for the Project and to make any Project 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 TWO
HUNDRED TWENTY -FOUR THOUSAND AND NO 1100 DOLLARS ($224,000.00).
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.
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.
Agreement for the Design, Engineering, and Development
of the Wayne Gray Sports Complex Project, Page 2
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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
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.
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 S
hereof on or before the effective date of the termination.
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.
Agreement for the Desijzn, Engineering, and Development
of the Wayne Gray ports Complex Project, Page 3
® 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.
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
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
bome by the entity requesting the audit. The City and the District shall make available all of its
records in support of the audit.
AUeement for the Design, Engineering, and Development
of the Wayne Gray Sports Complex Proiect, Page 4
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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.
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.
Agreement for the Design, Engineering, and Development
of the Wayne Gray ports Complex Project, Page 5
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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
Aereement for the Design, Engineering, and Development
of the Wayne Gray Sorts Complex Project, Page 6
BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT
PETE C. ALFARO, President
ATTEST:
GARY W. SMITH, Assistant Secretary