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Ordinance No. 9,560ORDINANCE NO. 9560
AN ORDINANCE OF 'THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, MAKING A CHANGE IN THE CITY OF BAYTOWN'S FISCAL
YEAR 2002 -2003 BUDGET FOR MUNICIPAL PURPOSES IN ORDER TO
REPROGRAM FUNDS FROM THE BIG MISSOURI LIFT STATION
PROJECT TO THE WEST BAYTOWN SEWER REHABILITATION
PROJECT, THE STEINMAN SEWER REHABILITATION PROJECT, AND
THE EVA MAUDE SEWER REHABILITATION PROJECT; MAKING
OTHER REPRESENTATIONS RELATED THERETO; AND PROVIDING
FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the City of Baytown's adopted budget for fiscal year 2002 -2003 includes
EIGHT HUNDRED FIFTY THOUSAND AND N01100 DOLLARS ($850,000.00) for
construction of the Big Missouri Lift Station Project; and
WHEREAS, funding can be delayed for the Big Missouri Lift Station Project since the
project is in the design phase and it is not reasonably anticipated that construction funds will be
required this fiscal year; and
WHEREAS, the City of Baytown's staff has determined that a better utilization of the
EIGHT HUNDRED FIFTY THOUSAND AND NO /100 DOLLARS ($850,000.00) in funding
would be to perform as follows:
9 $250,000 for the design costs of the West Baytown Sewer Rehabilitation Project
to allow its design to begin this fiscal year;
➢ $100,000 for the Steinman Sewer Rehabilitation Project to allow work to continue
on the project; and
$500,000 for the Eva Maude Sewer Rehabilitation Project to allow expeditious
completion of the project; and
WHEREAS, the City Council believes that reprogramming the funds as recommended by
the City of Baytown's staff would be the best use of the funds; NOW THEREFORE
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 changes in the City
of Baytown's Fiscal Year 2002 -2003 budget for municipal purposes to reprogram EIGHT
HUNDRED FIFTY THOUSAND AND NO 1100 DOLLARS ($850,000.00) from the Big
Missouri Lift Station Project to the West Baytown Sewer Rehabilitation, Steinman Sewer
Rehabilitation, and Eva Maude Sewer Rehabilitation Projects as more particularly described in
Exhibit "A," which is attached hereto and incorporated herein 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, Texas.
•
INTRODUCED, READ and PASSED, by the affirmative vote of the City Council of the
City of Baytown this the 81i day of May, 2003.
x, c.
PETE C. ALFARO, Ma or
ATTEST:
&A W TMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR ity Attorney
FAKarenTiles\City Council\ Ordinances \ReprogrammingPunds4Uti lityProjects.doc
2
•
•
CITY OF BAYTOWN
FY 2003 CAPITAL IMPROVEMENT PROGRAM (CIP) BUDGET
UTILITY CAPITAL IMPROVEMENT PROJECTS SUMMARY
2003 Proposed Revised
Project Description Budget Reprogramming Budget
Rehabilitation Projects
Miscellaneous Rehab & Emergencies
West Main Elevated Storage Tank
West Baytown Sewer
Pinehurst I Sewer
Texas Ave & Gulf Coast Lift Stations
Big Missouri Lift Station & Force Mai
School Courts Sewer
Eva Maude Sewer
Kingsbend Sewer
Steinman (W. District) Sewer
Subtotal:
$ 1,000,000
$
1,000,000
500,000
500,000
-
250,000
250,000
250,000
250,000
530,000
530,000
1,490,000
(850,000)
640,000
250,000
250,000
330,000
500,000
830,000
1,200,000
1,200,000
125,000
100,000
225,000
5,675,000
-
5,675,000
Utility System Improvement Projects
Loop Water Lines 78,000 78,000
Subtotal: 78,000 - 78,000
Bond Issuance Costs 77,000 77,000
Total Utility Improvements S 5,830,000 $ - `; 51830,000
EM A
5/5 /2003 9:28 AM 5 -08 -03 Utility Capital Improvement Program.xls
ORDINANCE NO. 9559
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A
PROFESSIONAL SERVICES AGREEMENT WITH LOCKWOOD, ANDREWS, &
NEWNAM, INC., FOR THE KINGSBEND SANITARY SEWER REHABILITATION
PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN
AMOUNT OF ONE HUNDRED FIFTEEN THOUSAND SIX HUNDRED SIXTY -
TWO AND NO /100 DOLLARS ($115,662.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute a professional services agreement with Lockwood, Andrews, &
Newnam, Inc. for the Kingsbend Sanitary Sewer Rehabilitation Project. A copy of said agreement is
attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Lockwood,
Andrews, & Newnam, Inc., in an amount not to exceed ONE HUNDRED FIFTEEN THOUSAND SIX
HUNDRED SIXTY -TWO AND NO /100 DOLLARS ($115,662.00) for engineering services in
accordance with the contract.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less,
provided that the amount authorized in Sections 2 hereof may not be increased by more than twenty-five
percent (25 %).
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 8" day of May, 2003.
PETE G ALFARO, Mayor
ATTEST:
GUY W. /S City Clerk
APPROVED AS TO FORM:
I ACIO RAMIREZ, SC.Kity Attorney
FAKaren\riles\City Council\ Ordinances\ LANKings $endSanitarySewerProject.doe
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of
Between
The City of Baytown ( "OWNER ")
and
( "Effective Date ")
Lockwood, Andrews & Newnam, Inc. ( "ENGINEER"
OWNER intends to Advertise and bid a sanitary sewer rehabilitation project for the Kings
Bend Subdivision. The projects consists of approximately 14,000
linear feet of sanitary sewer to be rehabilitated or replaced and
approximately 45 manholes to be rehabilitated
( "Project ").
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
•
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
EMIT A
• TABLE OF CONTENTS Page
ARTICLE1 - SERVICES OF ENGINEER ........................................................................................... ..............................3
1.01 Scope .................................................................................................................................... ..............................3
ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................... ..............................3
2.01 General ................................................................................................................................. ..............................3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ...................................................................... ............................... 3
3.01 General .................. ... ................. -- .................................................................................. ................................... 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER.. ....................... ........................................................... - ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................. ............................... 3
ARTICLE5 - OPINIONS OF COST ..................................................................................................... ..............................4
5.01 Opinions of Probable Construction Cost ............................................................................ ..............................4
5.02 Designing to Construction Cost Limit ............................................................................... ..............................4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ............................................... :.......................... ....................................... 4
6.01 Standards of Performance ................................................................................................... ............................... 4
6.02 Authorized Project Representatives ................................................................................... ............................... 5
6.03 Design without Construction Phase Services ..................................................................... ............................... 5
6.04 Use of Documents ....................................................................................-........................ ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................ ............................... .............................6
6.07 Controlling Law.. ......................................................................... — ................................................................... 7
6.08 Successors, Assigns, and Beneficiaries ............................................................................... ..............................7
6.09 Dispute Resolution .............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition .................................................................................. ..............................7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ................................................................................................................................ ..............................8
6.14 Severability .......................................................................................................................... ..............................8
6.15 Waiver .................................................................................................................................. ..............................8
6.16 Headings .............................................................................................................................. ..............................8
ARTICLE7 - DEFINITIONS .......................... ................................................................. .. .......................... ....................... 8
7.01 Defined Terms .................................................................................................................... ..............................8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. .............................11
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ................................................................................................................ ..............................1 I
•
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
•
•
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming, effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. If authorized by OWNER, ENGINEER shall
furnish Resident Project Representative(s� with duties,
responsibilities and limitations of authority as set forth in
Exhibit D.
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the design of the Project. ENGINEER's obligation to render
services hereunder will be for whatever period necessary for
the final completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) If OWNER fails within a reasonable
period of time to give written authorization to proceed with
any phase of services after completion of the immediately
preceding phase, or if OWNER delays ENGINEER's
services, ENGINEER may, after giving seven days written
notice to OWNER, suspend services under this Agreement. If
during such seven -day period, OWNER gives written
authorization to proceed or ENGINEER'S services are no
longer delayed by OWNER, ENGINEER may not suspend
services under this Agreement.
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGINEER shall
be 'entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
connection with, among other things, such delay or
suspension and reactivation and the fact that the time for
performance under this Agreement has been revised.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or fumished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. ' In
addition to payments provided for in paragraphs 4.0l.A and
4.013, OWNER shall pay ENG1 EER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. ENGINEER shall supply detailed
back -up information along with each invoice in order for the
OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
Exhibit C.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and
backup documentation therefor, the amounts due ENGINEER
will be increased at the rate of 1.0% per month (or the
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3of12
•
•
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However, it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and withheld in
accordance with paragraph 3.02.0 and that ENGINEER will
not suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
In the event of any termination under section 6.06,
ENGINEER will be entitled to invoice OWNER and
will be paid in accordance with Exhibit C for all
services performed or furnished and all Reimbursable
Expenses incurred through the effective date of
termination.
2. (Deleted)
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose tares, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such tares, fees, or costs be imposed, they
shall be in addition to ENGWEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. If a Construction Cost limit is established between
OWNER and ENGINEER, such Construction Cost limit and
a statement of ENGINEER's rights and responsibilities with
respect thereto will be specifically set forth in Exhibit F,
"Construction Cost Limit," to this Agreement. (Exhibit F is
not used).
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the
accuracy of opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEER's profession
practicing under similar circumstances at the same time and in
the same locality.
B. (Modified) ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies in
OWNER - furnished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.E.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
may employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
•
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, . unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. ONVNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the terms of any such
requested notice or certification, and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility
for the means, methods, techniques, sequences, or procedures
of construction selected by Contractor, for safety precautions
and programs incident to the Contractor's work in progress,
nor for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s), subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINEER's own employees and
its consultants for which it is legally liable) at the Site or
otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall- designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third
party, ENGINEER's Basic Services under this Agreement
will be considered to be completed upon completion of the
Final Design Phase or Bidding or Negotiating Phase as
outlined in Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or
any other Construction Phase services, and that such services
will be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or review and waives any
claims against the ENGINEER that may be in any way
connected thereto.
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5of12
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•
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the ENGINEER,
its officers, and employees and sub - consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER - furnished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60 -day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. If
so requested- by OWNER, with the concurrence of
ENGINEER, and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
Standard Form of Agreement
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Page 6 of 12
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•
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by
OWNER to famish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.13 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the' partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shalt appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
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the Site in connection with ENGNEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGNEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of the stricken provision.
6.15 Waiver
A. Non- enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof.
1. Addenda -- Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
2. Additional Services - -The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement- -This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8
hereof.
4. Application for Payment - -The form acceptable
to ENGINEER which is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
5. Asbestos- -Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
fibers into the air above current action levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services - -The services to be performed
for • or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid - -The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents - -The advertisement or
invitation to Bid, instructions to bidders, the Bid form
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order —A document recommended by
ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of
the Construction Agreement.
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10. Construction Agreement- -The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract —The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12, Construction Cost- -The cost to OWNER of
those portions of the entire Project designed or specified
by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
professionals and consultants, cost of land, rights -of -way,
or compensation for damages to properties, or OWNER's
costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges
incurred in connection with the Project, or the cost of
other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. (Modified) Contract Documents -- Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, Addenda (which pertain to
the Contract Documents), Contractor's Bid (including
documentation accompanying the Bid and any post -Bid
documentation submitted prior to the notice of award)
when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate
certifications, insurance documents the General
Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders,
Work Change Directives, Field Orders, and
ENGINEER's written interpretations and clarifications
issued on or after the Effective Date of the Construction
Agreement. Approved Shop Drawings and the reports
and drawings of subsurface and physical conditions are
not Contract Documents.
14. Contract Price - -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract Times - -The numbers of days or the
dates stated in the Construction Agreement to:
(i) achieve Final Completion, and (ii) complete the Work
so that it is ready for final payment as evidenced by
ENGINEER's written recommendation of final payment.
16. Contractor - -An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period —The time after Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final Completion or such longer period
of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or
specific provision of the Contract Documents.
18. Defective - -An adjective which, when modifying
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the
Contract Documents, or does not meet the requirements
of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been
damaged prior to ENGINEER's recommendation of final
payment.
19. Documents - -Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or furnished in appropriate phases by ENGINEER to
OWNER pursuant to this Agreement.
20. Drmvings- -That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not
Drawings as so defined.
21. Effective Date of the Construction Agreement- -
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement - -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Field Order —A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract
Price or the Contract Times.
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25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
27. Hazardous Environmental Condition --The
presence at the Site of Asbestos, PCB's, Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
28. Ha= ardour Waste- -The term Hazardous Waste
shall have the meaning provided in Section 1004 of the
Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
29. Lmvs and Regulations; Lmvs or Regulations- -
Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts
having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
3I. Petroleum-- Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non - Hazardous Waste
and crude oils.
32. Radioactive Materials— Source, special nuclear,
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
33. Record Drmvings- -The Drawings as issued for
construction on which the ENGINEER, upon completion
of the Work, has shown changes due to Addenda or
Change Orders and other information which ENGINEER
considers significant based on record documents
furnished by Contractor to ENGINEER and which were
annotated by Contractor to show changes made during
construction.
34. Reimbursable Expenses- -The expenses incurred
directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
35. Resident Project Representative- -The
authorized representative of ENGINEER, if any,
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative
will be ENGINEER's agent or employee and under
ENGINEER's supervision. As used herein, the term
Resident Project Representative includes any assistants
of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. Samples -- Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
37. Shop Drativings - -All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGINEER
to illustrate some portion of the Work.
38. Site - -Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which
the Work is to be performed, rights -of -way and
easements for access thereto, and such other lands
furnished by OWNER which are designated for use of
Contractor.
39. Specifications— —*hat part of the Contract
Documents consisting of written technical descriptions of
materials, equipment, systems, standards, and
workmanship as applied to the Work and certain
administrative details applicable thereto.
40. Substantial Completion - -The time at which the
Work (or a specified part thereof) has progressed to the point
where, in the opinion of ENGINEER, the Work (or a
specified part thereof) is sufficiently complete, in accordance
with the Contract Documents, so that the Work (or a specified
part thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereof.
41. Supplementary Conditions- -That part of the Contract
Documents which amends or supplements the General
Conditions.
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42. (Modified) Total Project Costs - -The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of ENGINEER or other design professionals
and consultants, cost of land, rights -of -way, compensation for
damages to properties, OWNER's costs for legal, accounting,
insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and
the cost of other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement.
43. Work- -The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to this
Project. Work includes and is the result of performing or
furnishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. Work Change Directive - -A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
or unforeseen subsurface or physical conditions under which
the Work is to be performed or to emergencies. A Work
Change Directive will not change the Contract Price or the
Contract Times but is evidence that the parties expect that the
change directed or documented by a Work Change Directive
will be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if any, on
the Contract Price or Contract Times.
45. Written Amendment --A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
eight (8) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work,"
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
Exhibit I, "Allocation of Risks," is not used
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings: This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
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Page 11 of 12
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1.
OWNER: City of Baytown
Gary Jackson
Title: City Manager
Date Signed:
Address for giving notices:
P.O. BOX 424
BAYTOWN, TEXAS 77422 -0424
Designated Representative (paragraph 6.02.A)
W.R. (Bill) Pedersen, P.E.
Title: City Engineer
Phone Number: (281) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: wrpedersen @baytown.org
ENGINEER: Lockwood, Andrews and INzw ikwn, Inc.
Printed N4T5Z J. AnthonV�Uoyd, -PE
Title Senior Vice President
Date Signed S` s` o 3
Address for giving notices:
2925 Briarpark Drive
Houston, TX 77042
Designated Representative (paragraph 6.02.A):
John M. Hewitt
Title: Manager Water Resources
Phone Number: 713- 266 -6900
Facsimile Number: 713 - 266 -8971
E -Mail Address: 'mhewitt lan- inc.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINES
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1 -- BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase
A. ENGINEER shall:
Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards and /or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER.
6. (Modified) Prepare a preliminary engineering report (the "Report") which will, as appropriate, contain
schematic layouts, sketches, schedule of events, and conceptual design criteria with appropriate
exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions
available to OWNER which ENGINEER recommends. This Report will be accompanied by
ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the
Project with each component separately itemized, including the following, which will be separately
itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated
total costs of design, professional, and related services provided by ENGINEER and, on the basis of
information furnished by OWNER, allowances for other items and services included within the
definition of Total Project Costs.
7. Furnish three (3) review copies of the Report to OWNER within ninety (90) days of authorization to
begin services and review it with OWNER.
8. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Report to the OWNER within twenty (20) days after completion of
reviewing it with OWNER.
Page 1 of 8pages
(Exhibit A — Engineer's Services)
• B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the revised Report have been delivered to and accepted by OWNER.
A 1.02 Final Design Phase
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable
Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER- directed
modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon
written authorization from OWNER, ENGINEER shall:
I. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings
indicating the scope, extent, and character of the Work to be performed and furnished by Contractor.
Specifications will be prepared, where appropriate, in conformance with the 16- division format of the
Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to ENGINEER, itemized as provided in paragraph A 1.0I .A.5.
4. Perform or provide the following additional final Design Phase tasks or deliverables:. None
5. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other
advisors, as appropriate, and assist OWNER in the preparation of other related documents.
6. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within ninety (90) days after authorization to proceed with this phase.
7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items, as reasonably requested
by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents.
B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more
than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or
more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to
commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services
during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to
sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's
compensation has been established under this Agreement is 1 (one).
D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A1.03.A.6 have been delivered to and accepted by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
• Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to
proceed, ENGINEER shall:
Page 2 of 8pages
(Exhibit A — Engineer's Services)
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where
applicable, provide 15 sets of plans and specifications, and maintain a record of prospective bidders to
whom Bidding Documents have been issued.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: None
5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding
contracts for the Work.
6. (Added) Receive and process Contractor deposits or charges for the Bidding Documents.
7. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A 1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01.0, if any.
3. Pre - Construction Conference. Participate in a Pre - Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site once per month during construction as appropriate to verify
Contractor's payment requests, and additional visits as ENGINEER and/or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Page 3 of 8pages
(Exhibit A — Engineer's Services)
Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and
the Contract Documents, but rather are to be limited to spot checking, selective sampling, and
similar methods of general observation of the Work based on ENGINEER's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER
shall keep OWNER informed of the progress of the Work.
(Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
professional, to provide for OWNER a greater degree of confidence that the completed Work
will substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as
a result of such observations of Contractor's work in progress, supervise, direct, or have control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor,
for safety precautions and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
6. (Modified) Defective !York. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drmvings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
Page 4 of 8pages
(Exhibit A — Engineer's Services)
• 1 I. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
•
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that to the best of ENGINEER's
knowledge, information and belief, Contractor's work has progressed to the point indicated, the
quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work. In the case, of unit price work, ENGINEER's
recommendations of payment will include final determinations of quantities and classifications
of Contractor's work (subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph A 1.04.A.5.a are
expressly subject to the limitations set forth in paragraph A1.04.A.5.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as
it is performed and furnished have been exhaustive, extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither
ENGINEER's review of Contractor's work for the purposes of recommending payments nor
ENGINEER's recommendation of any payment including final payment will impose on
ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for
the means, methods, techniques, sequences, or procedures of construction or safety precautions
or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable
to Contractor's furnishing and performing the Work. It will also not impose responsibility on
ENGINEER to make any examination to ascertain how or for what purposes Contractor has
used the moneys paid on account of the Contract Price, or to determine that title to any portion
of the work in progress, materials, or equipment has passed to OWNER free and clear of any
liens, claims, security interests, or encumbrances, or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
Page 5 of 8pages
(Exhibit A — Engineer's Services)
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this
information as provided by Contractor, and deliver three (3) copies of the same to OWNER .
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings,
Samples and other data approved as provided under paragraph A1.04.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such ENGINEER's review will be limited as provided in
paragraph A1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents
from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate
record information based on Project annotated record documents received from Contractor.
15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work
ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine
if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER
considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or deliverables:
None
17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to
the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due
diligence, the Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
A 1.05 Post - Construction Phase
A. Upon written authorization from OWNER, ENGINEER, during the Post - Construction Phase, shall:
1. Provide assistance in connection with the testing and adjusting of Project equipment or systems.
2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems.
• 3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record
keeping for Project equipment and systems.
Page 6 of 8pages
(Exhibit A — Engineer's Services)
4. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in
consultations and discussions with Contractor concerning correction of any such defects, and make
recommendations as to replacement or correction of Defective Work, if present.
5. Perform or provide the following additional Post - Construction Phase tasks or deliverables:
➢ Prepare a GIS map with GPS locations of the manholes and flow line elevations.
6. In company with OWNER or OWNER's representative, provide an inspection of the Project within one
month before the end of the Correction Period to ascertain whether any portion of the Work is subject to
correction.
B. The Post - Construction Phase services may commence during the Construction Phase and, if not otherwise
modified in this Exhibit A, will terminate at the end of the Correction Period.
PART 2 -- ADDITIONAL SERVICES
A2.0I Additional Services Requiring OWNER'S Authorization in Advance
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of
the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
(Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or govemmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by OWNER.
3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including, but not limited to,
changes in size, OWNER's schedule, or character of construction; and revising previously accepted
studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A1.01.A.4.
5. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.0 LEA of the Agreement.
6. Providing renderings or models for OWNER's use.
7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity
• surveys of materials, equipment, and labor; and audits or inventories required in connection with
construction performed by OWNER.
Page 7 of 8pages
(Exhibit A — Engineer's Services)
0 8. Furnishing services of ENGINEER's Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph AI.03.C.
10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value engineering, and constructibility review requested by OWNER; and performing or furnishing
services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
11 (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement.
16. Property descriptions.
17. (Modified) Property, easement, right -of -way, and other special surveys or data, including
establishing relevant reference points.
18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged
by fire or other cause during construction, or (4) acceleration of the progress schedule involving services
beyond normal working hours.
A2.02 Required Additional Services
A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from
OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing
prior to starting any such Additional Services.
1. Surveying Services
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
• 6. (Deleted)
Page 8 of 8pages
(Exhibit A — Engineer's Services)
• This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENG INEE
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site.
C. (Modified) Following ENGINEER's assessment of initially - available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as
required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Deleted).
• 1. (Deleted).
Page 1 of 2 pages
(Exhibit B - OWNER'S Responsibilities)
• J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructibility review.
•
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition
to, ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER.
M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and other job
related meetings, and Substantial Completion and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER
during construction phase.
Page 2 of 2 pages
(Exhibit B - OWNER's Responsibilities)
• This is EXHIBIT C, consisting of 1 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope --Cost not to Exceed Method of
Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $90,734, which does not include
those Engineer's Consultant's charges as
provided below in this Article 4, Subparagraph
C4.05, to be distributed at the completion of
each of the phase in the following amount:
a. Preliminary Design Phase
$9,728
b. Final Design Phase
$60,432
c. Bidding and Negotiating Phase
$3,908
d. Construction Phase
$13,416
e. Post Construction Phase
$3,250
3.2. (Modified) ENGINEER may with the
consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by
the OWNER.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05),
if any. Appropriate amounts have been
incorporated in the cost not to exceed to account
for labor, overhead, profit, and Reimbursable
Expenses.
• 4. Deleted.
Initial:
OWNER
ENGINEER
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period.
C4.02 For Basic Services Having An Undetermined
Scope — Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. General. For services of ENGINEER's
employees engaged directly on the Project
pursuant to paragraph A2.01 or A2.02 of Exhibit
A of the Agreement, except for services as a
consultant or witness under paragraph
A2.01.A.13, an amount equal to ENGINEER's
Direct Labor Costs based upon the rate schedule,
which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and
purposes, times a Factor of 1.1 plus
Reimbursable Expenses and ENGINEER's
Consultant's charges, if any. Additional
Services shall not exceed $24,400 without the
prior written consent of the Owner.
2. (Not Used).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the
Page 1 of 2 pages
(Exhibit C - Basic Services -- Cost not to exceed Method)
•
•
OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed $2,750
without the prior written consent of the Owner.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter
multiplied by a Factor of (1.1).
D. Deleted.
E. (Added) The OWNER must approve all
travel expenses before the same are incurred. If such
approval is not obtained, the OWNER shall not be
liable for such travel expenses.
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of (1.1). The consultant
charges shall not exceed the following amounts
specified for each of the following services, unless
approved in writing by the OWNER. The charges
include the factor, and are as follows:
(1) Surveying $ 22,178
(2) Geotechnical $
(3) Environmental $
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and
wages paid to ENGINEER's employees but does not
include payroll related costs or benefits.
B. (Deleted).
4.07 Factors
A. The Direct Labor Costs Factor includes the
cost of customary and statutory benefits including,
but not limited to, social security contributions,
unemployment, excise and payroll taxes, workers'
compensation, health and retirement benefits,
bonuses, sick leave, vacation, and holiday pay
applicable thereto; the cost of general and
administrative overhead, which includes salaries and
wages of principals and employees engaged in
business operations not directly chargeable to
projects, plus non- Project operating costs, including
but not limited to, business taxes, legal, rent, utilities,
office supplies, insurance, and other operating costs;
plus operating margin or profit.
B. External Reimbursable Expenses and
ENGINEER's Consultant's Factors include
ENGINEER's overhead and profit associated with
ENGINEER's responsibility for the administration of
such services and costs.
C4.08 Other Provisions Concerning-Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, will be
based on the Direct Labor Costs for the cumulative
hours charged to the Project during the billing period
by all of ENGINEER's employees, times the
Applicable Direct Labor Costs Factor, plus
Reimbursable Expenses and ENGINEER's
Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - Basic Services -- Cost not to exceed Method)
•
Appendix 1, Exhibit C
Kings Bend Sewer Systems Rehabilitation
Direct Labor Cost Rate Schedule
Project Manager
$
140
Project Engineer
$
105
Staff Engineer
$
90
Tech/Designer
$
85
Administrative Assistant
$
48
Appendix 2, Exhibit C
Kings Bend Sewer Systems Rehabilitation
Summary of Reimbursable Expenses
Mileage
$
965
Delivery/Postage
$
330
Reproduction - Reports
$
35
Reproduction - Design Effort (includes review sets of specs)
$
135
Reproduction - Review Specs
$
65
Reproduction - Review Plans
$
200
Reproduction - Final sets of Specs
$
65
Reproduction - Mylar Plan Sheets
$
370
Reproduction of Contract Documents & Specifications
$
120
Reproduction - Construction Drawings
$
375
Reproduction - Addendum Contract Documents
$
50
Reproduction - Addendum Construction Drawings
$
40
Subtotal - Non -Labor Costs (w/ 1.1 multiplier)
$
2,750
n
M This is EXHIBIT E, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINES
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
M
Title:
Dated:
E
Page 1 of 2 Pages
(Exhibit E —Notice of Acceptability of Work)
0 (Reverse side of Notice)
•
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGNEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and
perform the work thereunder in accordance with the Contract documents, unless ENGINEER knew or should
have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the
same were corrected and brought into compliance with the Contract Documents.
Page 2 of 2 Pages
(Exhibit E — Notice of Acceptability of Work)
•
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement, the ENGINEER 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 ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, 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 ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
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:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $500,000
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.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $500,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
Page 1 of 2 Pages
(Exhibit G - Insurance)
•
C. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of A:VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. City of Baytown, its officials and employees are to be added as Additional Insured to the commercial general
liabilityand business automobile policies.
e. 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's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to
execution of this agreement.
f. 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's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
•
•
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR
PLURAL, COLLECTIVELY REFERRED TO AS "OWNER ")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY. TO -OR
DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES
(HEREINAFTER, WHETHER SINGULAR OR PLURAL,
COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE
EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER,
SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST
EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT
ALLOWED REGARDLESS OF WHETHER THE CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR
LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF ENGINEER. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
ENGINEER AND OWNER, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO
INDEMNIFY AND PROTECT OWNER FROM THE
CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO
THE EXTENT ALLOWED BY LAW, WHERE THAT
NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE
RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II)
ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH
INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY
ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER
THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE
Page 1 of 2 Pages
(Exhibit K - Indemnification)
•
•
OF OWNER. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE OWNER BY
REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
OWNER AND THE ENGINEER.
The indemnity provided hereinabove shall survive the termination and/or expiration of
this Agreement.
ENGINEER assumes full responsibility for its work performed hereunder and
hereby releases, relinquishes and discharges OWNER, its officers, agents, and
employees from all claims, demands, and causes of action of every kind and
character for any injury to or death of any person and /or any loss of or damage to
any property that is caused by or alleged to be caused by, arising out of, or in
connection with ENGINEER's work to be performed hereunder. This release shall
apply with respect to ENGINEER's work regardless of whether said claims,
demands, and causes of action are covered in whole or in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents.
Page 2 of 2 Pages
(Exhibit K - Indemnification)
•
ORDINANCE NO. 9558
AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER
TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INTERLOCAL
AGREEMENT WITH THE BARBERS HILL INDEPENDENT SCHOOL
DISTRICT, GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL
DISTRICT AND THE CITY OF SEABROOK FOR A COOPERATIVE
AUCTION; 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 approves an
Interlocal Agreement with the Barbers Hill Independent School District, Goose Creek
Consolidated Independent School District and the City of Seabrook for a cooperative auction and
authorizes the City Manager and the City Clerk of the City of Baytown to execute and attest to
said agreement. A copy of the 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 24`h day of April, 2003.
ATTEST:
(3 Ay V. S�;mITH, City Clerk
APPROVED AS TO FORM:
e2 ACID RAMIREZ, SR. ty Attorney
FAKarenTiles \City Council\ OrdinancesMnterlocalAgreement4Auction2003 .doc
4 C. C�
PETE C. ALFARO, Mayor
THE STATE OF TEXAS §
§ AGREEMENT
• COUNTY OF HARRIS §
THIS AGREEMENT made this 14th day of April , 2003 between the CITY OF
BAYTOWN, TEXAS, the CITY OF MT. BELVIEU, TEXAS, BARBERS HILL
INDEPENDENT SCHOOL DISTRICT, GOOSE CREEK CONSOLIDATED
INDEPENDENT SCHOOL DISTRICT and the CITY OF SEABROOK.
WITNESSETH
Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex. Gov't
Code Ann. §§ 791.001, et seq.) providing for the cooperation between local governmental
bodies, the parties hereto, in consideration of the premises and mutual promises contained herein
agree to as follows:
I.
The Goose Creek Consolidated Independent School District shall be the true and lawful.
"host" and "initiator" for a cooperative auction to be held on May 3, 2003.
I�
The Goose Creek Consolidated Independent School District agrees that all specifications
for said items shall be as determined by the City of Baytown, City of Mt. Belvieu, Goose Creek
Consolidated Independent School District, Barbers Hill Independent School District and the City
of Seabrook.
11
The Goose Creek Consolidated Independent School District, by execution of this
• agreement, agrees to directly pay each governmental body its share of proceeds after completion
of the auction.
Page 1 of EXEiF A
•
NAF
This agreement shall take effect upon execution by the signatories and shall serve as each
governmental body's commitment to hold a cooperative auction on May 3, 2003.
V.
All parties agree that should any provision of the 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.
C%"
The officers executing this Agreement on behalf of the parties hereby confirm that such
officers have full authority to execute this Agreement and to bind the party he /she represents.
M
This agreement shall be in effect from the date of execution until June 30, 2003.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their authorized officers the day and year first above written.
rg...AZP4�,.
r�a
Gary 'Jackson
Printed Name
ATTEST: CITY OF BAYTOWN
Sig ture
W. Smith
Printed Name
jtV Manager __ City Clerk
• Title Title
Page 2 of 4
•
Signature
Printed Name
Title
Signature
Printed Name
Title
Signature
Printed Name
• Title
Page 3 of 4
ATTEST: CITY OF MT. BELVIEU
Signature
Printed Name
Title
ATTEST: BARBERS HILL ISD
Signature
Printed Name
Title
ATTEST: CITY OF SEABROOK
Signature
Printed Name
Title
•
ATTEST: GOOSE CREEK CISD
Printed Name
Title
Page 4 of 4
Si ature
AIL-�721 f
Printed Name
Title
ORDINANCE NO. 9557
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, DISCONTINUING, ABANDONING FOR PUBLIC USE AND CLOSING
THE UTILITY EASEMENT BETWEEN LOTS 22 AND 23 IN BLOCK 1 OF THE
REPLAT OF DECKER TERRACE, A SUBDIVISION IN HARRIS COUNTY;
ABANDONING AND QUITCLAIMING ALL INTEREST OF THE CITY OF
BAYTOWN AND THE PUBLIC IN AND TO SAID UTILITY EASEMENT;
AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO
ATTEST AND DELIVER CONVEYANCE TO RICHLAND BUILDERS, INC.;
AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the utility easement located between Lots 22 and 23 in Block 1 of the Replat of
Decker Terrace, a subdivision in Harris County, Texas, is not now used by the public; and
WHEREAS, no interest of the public requires that said utility easement be improved or kept
open; and
WHEREAS, a new home has been constructed on Lot 23 and the East % of Lot 22 over the
easement; and
WHEREAS, Richland Builders, Inc., has made application that the utility easement be
discontinued, abandoned and closed; and
WHEREAS, it appears to be to the best interest of the City of Baytown, Texas, that the
above - described utility easement be discontinued, abandoned and closed, and it further appears that
the interest of the public in general will not be prejudiced or impaired thereby; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the utility easement located between Lots 22 and 23 in Block 1 of the
Replat of Decker Terrace, a subdivision in Harris County, Texas, be and the same is hereby
discontinued and abandoned for public use, and the City of Baytown does for itself and for the public
abandon and quitclaim all interest in and to the above - described median, and does hereby approve
the application of Richland Builders, Inc.
Section 2: That the Mayor of the City of Baytown is hereby authorized and directed to
execute and the City Clerk to attest and deliver an appropriate conveyance of said utility easement to
Richland Builders, Inc., upon receipt of compensation in the amount of TWO HUNDRED THIRTY -
EIGHT AND 91/100 DOLLARS ($238.91).
Section 3: This ordinance shall take effect immediately from and after its passage bythe
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`h day of April, 2003.
/j,; eg- C - g V! �
P TE C. ALFARO, Mayor
ATTEST:
GAY tV. SF/1ITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR. ity Attorney
iFAKaren \Files \City Council\ Ordinances\ Abandoning EasementDcckerTerrace.doc
2
ORDINANCE NO. 9556
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
ADOPTING NEW FEES FOR THE RENTAL OF PARK PAVILIONS, THE RENTAL
OF TENT EQUIPMENT, THE RENTAL OF HOLIDAY COSTUMES; AND BALL
FIELD MAINTENANCE SERVICES FOR NON -CITY SPONSORED EVENTS;
REPEALING CONFLICTING ORDINANCES; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
WHEREAS, the Parks and Recreation Advisory Board has approved and recommends to the City
Council changes in the following fees for the reasons stated:
9 the rental of indoor and outdoor park pavilions due to the increased costs associated with
providing the facilities and related amenities;
9 the rental of tent equipment due to the expenses incurred by the City associated with the set-
up /take down services;
➢ the rental of holiday costumes due to the wear and tear on the costumes; and
➢ ball field maintenance services for non -City sponsored events which are performed by the City;
and
WHEREAS, such fee increases are designed to compensate the City, in part, for the actual
expenses incurred in providing the facilities, equipment, costumes and services; and
WHEREAS, the City Council has reviewed such fees and finds that such fees are fair and
reasonable and compensate the City, in part, for the facilities, equipment, costumes and services provided;
NOW THEREFORE,
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 adopts the fees for
the rental of park pavilions, the rental of tent equipment and costumes, and ball field maintenance services
for non -city sponsored events detailed in Exhibit "A," which is attached hereto and made a part hereof for
all intents and purposes.
Section 2: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating
and governing the subject matter covered by this ordinance.
Section 3: 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 24Th day of April, 2003.
PETE C. ALFARO, Mayor
GAAY W. SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., CW Attorney
FAKarcn\Files\City Cowreil\ Ordinances \ParkFecsEsiablished.doc
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ORDINANCE NO, 9555
40 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE PAYMENT OF NINE HUNDRED SIXTY -NINE
THOUSAND FIFTY -SEVEN AND NO 1100 DOLLARS ($969,057.00) TO
HOUSTON - GALVESTON AREA COUNCIL FOR THE PURCHASE OF ONE (1)
FIRE APPARATUS PUMPER AND ONE (1) FIRE APPARATUS AERIAL
QUINT; MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the City Counci 1 of the City of Baytown has approved an Interlocal Agreement
which authorizes the Houston - Galveston Area Council to take bids for certain items on behalf of the
City of Baytown; and
WHEREAS, pursuant to such agreement, the Houston - Galveston Area Council has taken
bids on one (1) fire apparatus pumper and one (1) fire apparatus aerial quint; NOW THEREFORE
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 subject to the
condition precedent specified in Section 2 hereof, the payment of NINE HUNDRED SIXTY -NrNE
THOUSAND FIFTY -SEVEN AND NO /100 DOLLARS ($969,057.00) to the Houston- Galveston
Area Council for the purchase of one (1) fire apparatus pumper and one (1) fire apparatus aerial
quint.
Section 2: That the funds authorized in Section 1 hereof shall not be expended or
otherwise appropriated unless and until the City of Baytown receives a performance bond in the
amount of one hundred percent (100 %) of the purchase price, without any prepayment or other
discount, of one (1) fire apparatus pumper and one (1) fire apparatus aerial quint. Such bond must be
approved by the city attorney and warrant delivery of one (1) fire apparatus pumper and one (1) fire
apparatus aerial quint on or before September 1, 2003.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order involving
a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS
($25,000.00) or less, provided that the original contract price may not be increased by more than
twenty -five percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent
of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
•
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 24th day of April, 2003.
ATTEST:
_ ""/�
GAY W. SPviITH, City Clerk
APPROVED AS TO FORM:
efGI�ACIO RAMIREZ, SR., ity Attorney
,l n r. 4�6e� .
PETE C. ALFARO, Mayor
0 F %Karen \Files\City Council\ Ordinances\ FireApparatusPumper &AerialQuint.doc
2
Published in the Baytown Sun on
Thursday, May 1, 2003
ORDINANCE NO. 9554
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, PROVIDING FOR THE EXTENSION OF CERTAIN BOUNDARY
LIMITS OF THE CITY OF BAYTOWN, TEXAS, AND THE ANNEXATION OF A
13.15 ACRE TRACT OF LAND LOCATED WEST OF AND ADJACENT TO
NORTH MAIN STREET AND NORTH OF THE REPUBLIC OF TEXAS PLAZA,
IN THE H.F. GILLETTE SURVEY, BAYTOWN, HARRIS COUNTY, TEXAS;
WHICH SAID TERRITORIES LIE ADJACENT TO AND ADJOIN THE
PRESENT BOUNDARY LIMITS FOR THE CITY OF BAYTOWN, TEXAS.
WHEREAS, there being no request for an "on- site" hearing, two public hearings before the
City Council of the City of Baytown, Texas, where all interested persons were provided with an
opportunity to be heard on the proposed annexation of the property described in Section 1 of this
ordinance, were held, during the City Council meeting on the 271h day of March, 2003, at 6:30 p.m.,
in the City Council Chamber of the City Hall of the City of Baytown, Texas, which date is not more
than forty (40) nor less than twenty (20) days prior to the institution of annexation proceedings; and
WHEREAS, notices of such public hearings were published in a newspaper having general
circulation in the City of Baytown, Texas, and in the below described territories on the 12`h day of
March, 2003, which date is not more than twenty (20) nor less than ten (10) days prior to the date of
such public hearings; and
WHEREAS, the total corporate area of the City of Baytown, Texas, on the 1 st day of January,
2003, was 32.43 square miles; and
WHEREAS, the population of the City of Baytown, Texas, is approximately 66,430
inhabitants; and
WHEREAS, the below described territories lie within the extraterritorial jurisdiction of the
City of Baytown, Texas; and
WHEREAS, the below described territories lie adjacent to and adjoin the City of Baytown,
Texas; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL. OF THE CITY OF BAYTOWN, TEXAS:
Section l: That the following described land and territories lying adjacent to and
adjoining the City of Baytown are hereby added and annexed to the City of Baytown, Texas, and
shall hereinafter be included within the boundary limits of the City of Baytown, Texas, and present
boundary limits of such City, at the various points contiguous to the areas hereinafter described, are
altered and amended so as to include said areas within the corporate limits of the City of Baytown,
Texas, to -wit:
SEE EXHIBIT "A"
Section 2: The above described territories and the areas so annexed shall be apart of the
City of Baytown, Texas, and the property so added hereby shall bear its pro rata of the taxes levied
by the City of Baytown, Texas, and the inhabitants thereof shall be entitled to all of the rights and
privileges of all the citizens of the City of Baytown and shall be bound by the acts, ordinances,
resolutions, and regulations of the City of Baytown, Texas.
Section 3: In accordance with Texas Local Government Code Annotated § 43.056, as
amended, the service plan prepared by the City for providing municipal services to the annexed areas
is attached as Exhibit "B" and is hereby approved.
Section 4: This ordinance shall be published and passed in the manner provided in
Article 1, Section 9, of the Charter of the City of Baytown, Texas.
INTRODUCED, READ and PASSED on the FIRST READING this the 24`h day of April,
2003,
�
PETE C. ALFARO, ayor
ATTEST:
G �' SM TH, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, S ity Attorney
INTROD CE D, READ and PASSED on the SECOND AND FINAL READING this the
P" day of , 2003.
PETE C. ALFAR , Mayor
ATTEST: -
,:4,y Si�ITH, City Clerk
APP OVED AS TO FORM:
ACID RAIVIIREZ, SR. (aty Attorney
F:Veanenc \My Documents\ Council\ 02 -03\ April\ Anncxation Reading l3AcresBCA.doc
0 BAYTOWN CHRISTIAN ACADEMY, INC.
Legal Description
Being 26.670 acres out of a called 42.680 acre tract conveyed unto Otto Gerbes and wife
Clara W. Gerbes by B. A. Stewart and Eula Stewart as evidenced by deed recorded in
Volume 2304 Page 194 of the deed records of Harris County, Texas. Said Tract being in
the H. F Gillette Survey and being further described by metes and bounds as follows:
Beginning at the northwest corner of said 42.680 acre tract said corner being located
called S 9° 30' 00" E 1,173.0 feet and N 80° 53' 00" 32.0 feet from the northwest corner
of the H. F. Gillette Survey. Said beginning point being located in the east line of Lot 18,
Block 6 of East End Addition, Highlands Farms, an addition as recorded in Volume 15,
Page 60 of the Map Records of Harris County, Texas, and being the northwest corner of
the herein described tract.
Thence N 80° 53' 00" E along the north line of said 42.680 acre tract, and the north line
of the herein described tract; at 191.17 feet pass the southeast corner of a called 3.0 acre
tract conveyed to David W. Tigert and Belinda Gay Tigert by deed recorded under
County Clerks File Number P466727 and a 5/8 inch iron rod with cap found bearing S
80 053' 00" W 2.47 feet; at 397.24 feet past the southeast corner of a called 5.39 acre tract
conveyed unto Garry A. and Kathy L. Nelson by deed recorded in County Clerks File
Number N541884; at 580.44 feet past the southeast corner a called 5.39 acre tract
conveyed unto Linda Lorraine Putman by deed recorded under County Clerk's File
Number P904233 and a old 3/8 inch iron rod found bearing S 10° 18' 46" E 2.60 feet; at
763.64 feet past the southeast corner of a 4.793 acre tract of land conveyed unto Edward
R. and Beth Ann Birdwell by deed recorded under County Clerks File Number N553940;
at 954.81 feet pass the southeast corner of a 5.0 acre tract of land conveyed unto E. P.
Anders, Jr. and Dorothy N. Anders by deed recorded in Volume 4873, Page 279 of the
Harris County Deed Records and a 3/8 inch iron rod found bearing S 28° 52' 44" E 0.67
feet; at 1,145.98 feet pass the southeast corner of a 5.0 acre tract conveyed unto Steven K
Ackerman by deed recorded under County Clerks File Number U059497 and a old 3/8"
iron rod found bearing N 80° 53' 00" E 0.25 feet; a total distance in all of 1,425.38 feet to
the west right of way line of North Main Street (right of way is equal to 100 feet) and the
northeast corner of the herein described tract and the southeast corner of a called 7.3962
acre tract conveyed unto First Christian Church, Baytown Texas by deed recorded under
County Clerks File Number L907493.
Thence S 00° 51' 08" W severing the said 42.68 acre tract, and along the west right of
way line of North Main Street as described in right of way deed recorded under County
Clerks File Number H609108, of the Official Records of Real Property of Harris County,
Texas 875.90 feet to the southeast corner of the herein described tract and a set 5/8 inch
iron rod with plastic cap stamped "G. W. Hans 1748 ". Said corner being located in the
north line of a 45 -foot right of way conveyed unto Harris County by Otto Gerbes and
Clara W. Gerbes, as evidenced by deed recorded under County Clerks File Number
is H609107 of the Official Records of Real Property of Harris County, Texas.
EXHIBIT A
Thence S 80° 30' 00" W parallel to and 90 feet north of the south line of the said 42.680
acre tract and with the north line of said 45 -foot right of way 1,267.98 feet to the
southwest corner of the herein described tract and a set 5/8 inch iron rod with plastic cap
stamped "G. W. Hans 1748" located in the west line of the said 42.680 acre tract and in
the east line of Lot 7 Block 21 of Highland Farms Subdivision.
Thence N 9° 30' 00" W along the east line of Blocks 6 and 9 of said East End Addition,
and the west line of said 42.680 acre tract 862.70 feet to the northeast corner of the herein
described tract, a found %Z" iron rod with cap stamped "F.G. Huffman 1682" bearing N 9°
28' 44" W 1.04 feet, and the place of beginning containing in all 1,161.754 square feet or
26.670 acres more or less.
Save and except the following described tract:
DESCRIPTION OF 13.52 acres, more or less, situated in the H. F. Gillette Survey,
Abstract 297, Harris County, Texas and being out of and a part of that certain called
26.670 a cre t ract o f 1 and c onveyed b y Otto Gerbes Estate, et al, to Baytown Christian
Academy, Inc. by Deed dated December 20, 2000 and recorded in County Clerk's File
No. U792623 of the Official Public Records of Real Property of Harris County, Texas.
This 13.52 acre tract is more particularly described by the following metes and bounds,
to -wit:
NOTE: BEARINGS ARE BASED ON DEED BEARINGS ON THE WEST AND
NORTH LINES OF SAID CALLED 26.67 ACRES.
BEGINNING at a point for the Southwest corner of said called 26.67 acres in the East
line of Lot 7 of Block 21 of East End Addition, Highland Farms Subdivision as recorded
in Volume 15, Page 60 of the Map Records of Hams County, Texas. Said point being in
the North line of a 45 feet wide right -of -way conveyed by Otto Gerbes, et ux, to Harris
County by Deed recorded in County Clerk's File No. H609107 of the Official Public
Records of Real Property of Harris County, Texas and being the Southwest corner and
POINT OF BEGINNING of this tract.
Thence N 9° 30' 00" W along the West line of this tract, the West line of said called
26.67 acres and the East line of Blocks 21 and 9 of said East End Addition, Highlands
Farms Subdivision, for a distance of 450 feet, more or less, to a point in the Corporate
Limits of the City of Baytown for the Northwest corner of this tract.
Thence N 80° 53' 00" E along the North line of this tract and along the Corporate Limits
of the City of Baytown, over and across said called 26.76 acres, for a distance of 1350.08
feet to a point in the East line of said called 26.76 acres and the West right -of -way line of
North Main Street (100 feet wide right -of -way) as described in right -of -way Deed in
County Clerk's File No. H609108 of the Official Public Records of Real Property of
Hams County, Texas.
Thence S 00° 51' 08" W along the East line of this tract, the East line of said called 26.76
acres, the Corporate Limits of City of Baytown and the west right of way line of said
North Main Street for a distance of 456.89 feet, more or less, to a point for the Southeast
corner of this tract, the Southeast corner of said called 26.76 acres and being in the North
right -of -way line of said 45 feet wide tract conveyed to Harris County.
Thence S 80° 30' 00" W along the South line of this tract, the South line of said called
26.76 acres and the North line of said Harris County tract for a distance of 1267.98 feet to
the PLACE OF BEGINNING and containing within these boundaries 13.52 acres of land,
acres more or less.
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SERVICE PLAN
for
Approximately 13.52 acres
.... ...............................
.... ...............................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
March 20, 2003
�,; ii
® March 17, 2003
SUMMARY
The area to be annexed is located in the ETJ, west of and adjacent to North Main Street
and north of the Republic of Texas Plaza, being in the H. F. Gillette Survey in Harris
County, Texas.
Size of Area: The area proposed for annexation is approximately 13.52 acres shown on
the attached map.
Proposed Land Use: Baytown Christian Academy. Upon annexation, the property will be
in the Mixed Use (MU) zoning district.
Impact: As a result of this proposed annexation, no additional city facilities, vehicles, or
personnel will be required. For fire protection purposes, the project site will be assigned
to Fire Station 1 and Police District 3.
Means of Accomplishment: The annexation will be accomplished from the existing city
limit line.
Public Input: Public Hearings will be held to allow for public input.
Attachments: Attached to this summary are the specific Service Plan elements
submitted by each of the major city departments.
•
SERVICE. PLAN FOR THE FIRE DEPARTMENT
RE: Proposed annexation of M% acres (Baytown Christian Academy).
13.s
1. The area being annexed is described as a2 -Scre tract of land west of and adjacent to North
Main Sbyd and north of the Republic of Texas Plaza. i GUM SuM in Harris
County. Texas.
2. The area will be assigned to the following service area: The newly annexed
area will receive the same services as other developments in the area.
3. The annexation of this area will l n require the construction of additional buildings for this
Department. Please list any new b�uiingrequirernents and attach hereto as Exhibit "A ".
4. The annexation will Villn requ ire the purchase of additional vehicles. Any purchases required
will be made within d one -half years of the date of annexation. Please list any specific
vehicle requirements and attach hereto as Exhibit "B ".
S. The annexation will aapp require additional personnel. The Department will hire any required
personnel as qual' ants beco me available. Please list any specific personnel required and
attach hereto as Exhibit "C'.
6. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ".
7. " The effective date of implementation of this service plan r will be
..i
46
SERVICE PLAN FOR THE INSPECTIONS DEPARTMENT
13•s.Z
RE: Proposed annexation ofl6;52 acres (Baytown Christian Academy).
1. The area being annexed is described as a y. tz"Jand west of and .d .�'1 1• +l�l
Main Street and north +! the Republic of Texas Plaza, being in the l ei14" S ► a 1 ■ t 11�
County,
2. The area will be assigned to the following service area: The newly annexed
area will receive the same services as other developments in the area.
3. The annexation of this area will ill ulre the construction of additional buildings for this
Department. Please list any new ui and attach hereto as Exhibit "A ".
4. The annexation willAAnot require the purchase of additional vehicles. Any purchases required
will be made within two and one -half years of the date of annexation. Please list any specific
vehicle requirements and attach hereto as Exhibit "B ".
5. The annexation wil will n require additional personnel. The Department will hire any required
personnel as qual• applicants become available. Please list any specific personnel required and
attach hereto as Exhibit "C'.
6. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ".
7. The effective date of implementation of this service plan will be Upon-Annexation .
•
® SERVICE PLAN FOR THE PUBLIC WORKS DEPARTMENT
135 _Z__
RE: Proposed annexation of 4fizU acres (Baytown Christian Academy).
1,25 S;?
1. The area being annexed is described as a west of and adiacent to North
Main Street and north of the Rel2ublic of Texas Plaza. being io the H. F, Gillette
County. Texas.
2. The area will be assigned to the following service area: XIM The newly annexed
area will receive the same services as other developments i the area.
3. The annexation -of this area wil i�ingrequirements uire the construction of additional buildings for this
Department. Please list any new bil and attach hereto as Exhibit "A".
4. The annexation wil will nn uire the purchase of additional vehicles. Any purchases required
will be made within t—wo and one -half years of the date of annexation. Please list any specific
fic
vehicle requirements and attach hereto as Exhibit "B ".
5. The annexation wil will n uire additional personnel. The Department will hire any required
personnel as qual' applicants become available. Please list any specific personnel required and
attach hereto as Exhibit "C'.
6. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ".
7. The effective date of implementation of this service plan will be Upon Annexation
t
Date
•
SERVICE PLAN FOR THE POLICE DEPARTMENT
RE: Proposed annexation of 16,52 acres (Baytown Christian Academy).
13.57.
1. The area being annexed is described as a
Main street and north of the Republic of Texas Plaza. being in the H. F. Gillette Survev in Harris
2. The area will be assigned to the following service area: 0 f 5T- 3 _ The newly annexed
area will receive the same services as other developments in the area.
I The annexation of this area .9jwill not require the construction of additional buildings for this
Department. Please list any new building requirements and attach hereto as Exhibit "A ".
4. The annexation SIC /will not require the purchase of additional vehicles. Any purchases required
will be made within two and one -half years of the date of annexation. Please fist any specific
vehicle requirements and attach hereto as Exhibit "B ".
5. The annexation Wwill not require additional personnel. The Department will hire any required
personnel as qualified applicants become available. Please list any specific personnel required and
attach hereto as Exhibit "C".
fi. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ".
7. The effective date of implementation of this service plan will be Upon Annexation
Date
•
A /
SERVICE PLAN FOR THE ENGINEERING DEPARTMENT
I3_S-Z
RE: Proposed annexation of 16-.51 acres (Baytown Christian Academy).
i. The area being annexed is described as a � 2�a 2
cre tract Qf ,larld yvest of and ddjaqgnx to North
Main Street and north of the Republic of Texas Plaza—being in the H, F, QillgUC SgLyer in Harris
County. Texas.
2. The area will be assigned to the following service area: . The newly annexed
area will receive the same services as other developments in the area.
3. The annexation 'of this area wilot require the construction of additional buildings for this
Department. Please list any new building requirements and attach hereto as Exhibit "A".
4. The annexation wil will n require the purchase of additional vehicles. Any purchases required
will be made within to and one -half years of the date of annexation. Please list any specific
vehicle requirements and attach hereto as Exhibit "B ".
5. The annexation wil i n require additional personnel. The Department will hire any required
personnel as qual' scants become available. Please list any specific personnel required and
attach hereto as Exhibit "C'.
6. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ". cous✓I-T' wmY ,4,6d"c WAS
7. The effective date of implementation of this service plan will be Upon Annexation .
Signature
.
Date
•
r
•
SERVICE PLAN FOR THE HEALTHIEMERGENCY MANAGEMENT DEPARTMENT
RE: Proposed annexation of 16.52 acres (Baytown Christian Academy).
1. The area being annexed is described as a 16.52 -acre tract of land west of and adjacent to North
Main Street and nom of _the Republic of Texas Plaza, being in the H. F. Gillette. Survey in Harris
County. Texas.
t
2. The area will be assigned to the following service area: The newly annexed
area will receive the same services as other developments in the area.
3. The annexation 'of this area will / dl n wre the construction of additional buildings for this
Department. Please list any new a ing requirements and attach hereto as Exhibit "A ".
4. The annexation will671-11—no—tNeQuire the purchase of additional vehicles. Any purchases required
will be made within and one -half years of the date of annexation. Please list any specific
vehicle requirements and attach hereto as Exhibit "B ".
5. The annexation wil will n require additional personnel. The Department will hire any required
personnel as qual' ap icants become available. Please list any specific personnel required and
attach hereto as Exhibit "C'.
6. If this annexation requires the construction /expansion of any other service facility an explanation
should be attached hereto as Exhibit "D ".
7. The effective date of implementation of this service plan will be Upon Annexation .
M
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ORDINANCE NO. 9553
® AN ORDINANCE OF THE CITY COUNCIL, CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE PAYMENT OF ONE HUNDRED SEVENTY -FIVE THOUSAND
NINETY -SIX AND 68/100 DOLLARS ($175,096.68) TO PEXX, INC., FOR THE
INSTALLATION OF A BROADBAND WIRELESS NETWORK INFRASTRUCTURE
FOR ELEVEN (11) LOCATIONS AND A MOBILE WIRELESS NETWORK
COMPRISED OF TWELVE (12) ACCESS POINTS AND TEN (10) MOBILE UNITS AND
SOFTWARE TO MAINTAIN AND OPERATE THESE SYSTEMS; MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
WHEREAS, the City of Baytown is a member of the cooperative purchasing program established
under Sections 271.082 and 271.083 of the Texas Local Government Code; and
WHEREAS, the Qualified Information Services Vendor Catalogue Purchasing Program is such a
program, allowing municipalities to purchase automated information systems products and/or services in an
efficient, cost effective, and competitive procurement method, and
WHEREAS, the City of Baytown in making a purchase under a state contract through such
cooperative purchasing program satisfies state. law requiring municipalities to seek competitive bids or
proposals for the purchase of the item; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Counci 1 of the City of Baytown hereby authorizes the payment of ONE
HUNDRED SEVENTY -FIVE THOUSAND NINETY -SIX AND 68/100 DOLLARS ($175,096.68) to Pexx,
Inc., for the installation of a broadband wireless network infrastructure for eleven (11) locations and a mobile
wireless network comprised of twelve (12) access points and ten (10) mobile units and software to maintain
and operate these systems.
Section 2: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS
($25,000.00) or less, provided that the original contract price may not be increased by more than twenty-five
percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to
such decrease.
Section 3: 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 I O'h day of April, 2003.
PETE C. ALFARO, Mayor
ATT
G Y W. SMITH. City Clerk
® APPROVED AS TO FORM:
d'.D /..,, 1'�4
ACIO RAMIREZ, SR., C& Attorney
FAKaren\Files \City Cowicil\ Ordinanccs\ QISVpurchaseDellConiputer &Soflware.doc
ORDINANCE NO. 9552
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
APPROVING THE WATER SUPPLY CONTRACT — TREATED WATER BETWEEN
THE BAYTOWN AREA WATER AUTHORITY AND COUNTRY TERRACE
WATER CO., INC.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
WHEREAS, Country Terrace is located on Wallisville Road between Thompson Road and Wade
Road and has a population of approximately 1,800 and 323 connections; and
WHEREAS, on September 19, 2001, the Board of Directors of the Baytown Area Watei
Authority ( "BAWA ") approved the Water Supply Contract — Treated Water (the "Contract ") with
Country Terrace contingent upon a capital buy -in fee of $88,748 and approval from the City of Houston;
and
WHEREAS, on April 12, 2002, BAWA received a majority of the capital buy -in fee, namely
$79,873; and
WHEREAS, on November 25, 2002, the City of Houston approved the Contract; and
WHEREAS, on December 18, 2002, the BAWA Board of Directors approved a payment
arrangement for the balance of the capital buy -in fee of $8,875 over a one -year term; and
WHEREAS, pursuant to Chapter 600, Acts of the 63`' Legislature, Regular Session, 1973, the
City Council of the City of Baytown must approve the Contract; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section l: That the City Council of the City of Baytown, Texas, hereby approves the Water
Supply Contract — Treated Water between the Baytown Area Water Authority and the Country Terrace
Water Co., Inc. A copy of such contract is attached hereto as Exhibit "A," and incorporated herein 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 10`h day of April, 2003.
PETE C. ALFARO, M` yor
ATTEST:
Z W /A
G :Y W. SMITE, City Clerk
• APPROVED AS TO FORM:
Gj
pre
4KNACI0 RAMIREZ, SR. .ty Attorney
F:\Karen\Files \City Council\ Ordinances\ ApproveBAWAContractWCountryTerrace.doc
I
Water Supply Contract -- Treated Water
Country Terrace Water Co.
STATE OF TEXAS
COUNTY OF HARRIS
This Water Supply Contract -- Treated Water, hereinafter referred to as the "Contract," is
made and entered into on the date herein after last specified by and between the Baytown Area Water
Authority, a governmental agency and a body politic and corporate of the State of Texas, created
pursuant to Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973, hereinafter referred to
as `BAWA," and the Country Terrace Water Co., Inc., a Texas corporation having a mailing address
of P.O. Box 24433, Houston, Texas 77229, hereinafter referred to as "CTW."
WHEREAS, BAWA has the right under a contract with the City of Houston to buy untreated
water from the City of Houston; and
WHEREAS, BAWA has constructed and will continue to repair, construct and modify
certain facilities to treat and deliver water to its customers at several points of delivery; and
WHEREAS, CTW has constructed or contracted with BAWA to construct certain facilities to
enable CTW to receive treated water from BAWA; and
WHEREAS, BAWA desires to sell quantities of treated water to CTW; and
WHEREAS, CTW, subject to the terms and conditions contained herein, desires to purchase
from BAWA its treated water; and
WHEREAS, BAWA and CTW have found, and do hereby find, that BAWA and CTW are
authorized by the laws of the State of Texas to enter into a contract for the sale of water upon such
terms and for the period of time hereinafter set forth; and
WHEREAS, CTW is authorized to enter into a contract for the purchase of treated water
from BAWA pursuant to Section 54.218 of the Texas Water Code;
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually agree as follows:
ARTICLE I
DEFINITIONS
Unless a different meaning or intent clearly appears from the context, the following words
• and terms shall have the meanings specified in this Article, respectively:
EMU A
1.01 "Act" means Chapter 600, Acts of the 63rd Legislature, Regular Session, 1973.
1.02 "BAWA Contract" means the Water Supply Contract between the City of Houston
and Baytown Area Water Authority, dated October 24,1994, between BAWA, as buyer,-and
the City of Houston, Texas, as seller, a copy of which is attached hereto and incorporated
herein for all intents and purposes.
1.03 `Beginning Date" shall mean the date that CTW begins receiving treated water from
BAWA under this Contract or the effective date hereof, whichever is later. Such date may
occur after the effective date of this Contract as defined in Article IX. Provided, however,
that if CTW does not begin receiving treated water within one year of the effective date
hereof, BAWA shall be under no further obligation to supply CTW with treated water.
1.04 "CTW's Facilities" shall mean facilities constructed by CTW to enable CTW to
receive treated water.
1.05 "Contract Quantity" shall mean the maximum quantity of treated water that BAWA
agrees to reserve and sell to CTW pursuant to Section 2.01 herein.
1.06 "Contract Term" is defined in Article IX.
1.07 "General Manager" shall mean the General Manager of the Baytown Area Water
Authority or any successor agency and all persons designated by the General Manager to
administer the sale and delivery of water to CTW.
1.08 "MGD" is an abbreviation for million gallons of water per day. As used in this
contract, "MGD" refers to a quantity of water during a period of time expressed for
convenience in terms of an average daily quantity during a calendar month (unless a different
period of time is specified). The volume of two MGD for a calendar month, for example, is
calculated as follows: Two million gallons multiplied by the number of days in such
calendar month.
1.09 "Point of Delivery" shall mean those delivery points as indicated on Exhibit "A,"
which is attached hereto and incorporated herein for all intents and purposes, to which
BAWA agrees to deliver treated water to CTW.
1.10 "Point of Measurement" shall mean the location of the meter at which CTW's
consumption of water is measured, more particularly described in Exhibit "A."
1.11 "Prof ect" means the property, works, facilities and improvements, whether previously
existing or to be made, constructed or acquired, within or without the boundaries of BAWA,
necessary
(a) to acquire surface water supplies from sources both within and without the
boundaries of BAWA, including particularly the sources provided by
BAWA's Contract (herein defined),
2
0
(b) to conserve, store, transport, treat and purify untreated water purchased by
BAWA pursuant to BAWA's Contract, and
(c) to distribute, sell and deliver treated water to CTW pursuant to the terms of
the Contract.
1.12 "Service Area" shall mean the area within the boundaries more particularly described
in Exhibit "B," which is attached hereto and incorporated herein for all intents and purposes.
1.18 "TNRCC" shall mean the Texas Natural Resource Conservation Commission or its
successor.
1.13 "Water" shall mean potable water meeting the minimum drinking water standards
prescribed by Texas Department of Health Resources and Texas Natural Resource
Conservation Commission, and their successor agencies.
ARTICLE H
SALE AND DELIVERY OF WATER
2.01 Subject to the terms and conditions of this Contract, during the Contract Tenn,
BAWA agrees to sell and deliver (or cause to be delivered) to CTW, all of CTW's water
requirements of treated water at the Points of Delivery at daily rates of delivery; and CTW agrees to
purchase from BAWA, all of CTW's treated water requirements for resale at the Points of Delivery
during the term of this Contract. It is expressly agreed to and understood that BAWA shall not be
obligated to deliver to CTW treated water in excess of the Contract Quantity which shall be the
monthly average per day of 0.110 MGD.
2.02 The Points of Delivery for treated water sold under this-contract shall be designated in
writing by CTW; provided, however, BAWA reserves the right to reject any Point of Delivery
designated by CTW which would affect, interfere with or increase the cost of any other facilities or
operations which BAWA might wish to construct or implement, or plan to construct or implement,
or which would adversely affect BAWA's ability to provide treated water to any of its customers.
Both BAWA and CTW agree that the Points of Delivery shall be those indicated on Exhibit "A,"
which is attached hereto and incorporated herein for all intents and purposes. Additionally, CTW
may give BAWA notice in writing of any additional or change in Point(s) of Delivery designated by
CTW, and BAWA agrees to accept or reject such Point(s) of Delivery by a response in writing within
thirty (30) days after BAWA's receipt of the notice.
2.03 Treated water may be delivered to CTW from any source or combination of sources
available to BAWA.
•
2.04 The treated water to be delivered shall meet minimum standards prescribed by the
State of Texas for municipal purposes (as such term is defined by the TNRCC in its rules) and shall
be only used by CTW within the Service Area.
2.05 If CTW wishes to reserve for itself additional monthly quantities of treated water,
CTW must notify BAWA in writing of CTW's desire to do so. The General Manager may, at his
discretion after considering the treated water requirements of CTW and BAWA's obligations and
commitments, increase the quantity of treated water supplied to CTW; provided, however, that
BAWA shall be under no obligation to deliver treated water in excess of Contract Quantity. BAWA
may, at its discretion, discontinue delivery of such additional monthly requirements of treated water
by giving CTW thirty (3 0) days' written notice.
2.06 CTW shall own and be responsible for all lines connected to BAWA's transmission
line, beginning at the point where the metering device is installed to meter sales to CTW.
ARTICLE III
CONSTRUCTION OF THE PROJECT
3.01 CTW agrees to proceed promptly with the acquisition and construction of the Project
with monies lawfully available for such purpose after obtaining written approval of the plans and
specifications from BAWA. However, such approval shall not be deemed to be for the benefit of
CTW, bur rather just for the protection of BAWA's system.
3.02 If CTW desires to materially revise the scope of or the plans and specifications for the
Project, such proposed revisions shall be submitted to BAWA for approval. If BAWA approves
such revisions, the Project shall be modified.
ARTICLE IV
RATES AND PRICES
4.01 As a contribution to the capital investment of BAWA and in consideration for
connection of CTW's work system, CTW shall. pay EIGHTY -EIGHT THOUSAND SEVEN
HUNDRED FORTY -EIGHT AND N01100 DOLLARS ($88,748.00), within thirty (30) days ofthe
funding of the first issue of capital improvement bonds by CTW. Notwithstanding the above,
however, CTW is obligated and hereby promises to pay or cause to be paid to BAWA said amount
no later than one year from the date of this contract. Additionally in order to further secure CTW's
assurance of the availability of such funds, CTW will provide or cause to be provided to BAWA an
irrevocable letter of credit, payable to BAWA, in a form acceptable to BAWA in the amount of
EIGHTY -EIGHT THOUSAND SEVEN HUNDRED FORTY -EIGHT AND NO /100 DOLLARS
($88,748.00), so that, should BAWA be required to enlarge or expand its water treatment facilities to
provide treated water to CTW in the amounts set forth herein prior to the payment to BAWA, by
CTW of EIGHTY -EIGHT THOUSAND SEVEN HUNDRED FORTY -EIGHT AND N0 1100
DOLLARS ($88,748.00), described above, then, in such event, the Letter of Credit can be drawn
4
W
upon by BAWA in such amounts and installments necessary in order to provide funds for such
enlargement or expansion of water treatment facilities in the amount of CTW's pro rata share of any
such capital expansion costs. BAWA shall also be entitled to draw upon the full amount of such
letter of credit of the full amount of the capital investment contribution has not been paid within one
year of the date of this Contract.
4.02 Whenever CTW's consumption shall exceed Contract Quantity by ten percent (10 %),
a five percent (5%) surcharge shall be charged against that portion of the consumption that exceeds
the Contract Quantity. Provided, however, this surcharge shall not apply to any increase in the
quantity of treated water granted by the General Manager pursuant to Section 2.05 hereof.
4.03 All water sold and delivered by BAWA to CTW for which CTW is obligated to pay
hereunder shall be sold to CTW at the rate of $1.29 per one thousand gallons.
4.04 The amount of water delivered to CTW shall be measured by the metering equipment
located at the point of delivery.
4.05 Additionally, CTW understands and agrees that BAWA may at anytime, by' order
duly enacted, increase or change the price or prices for treated' water as set forth in this article;
provided, however that except where an independent rate analysis conducted by a qualified concern
indicates that certain rate increase is required, the price or prices for treated water shall not be
increased percentagewise to CTW during any twelve (12) month period of this contract in excess of
the percentage rate increase in BAWA's water rates to other purchasers of treated water during the
same period.
ARTICLE V
REPORTS
5.01 Within fifteen (I S) days after the end of each quarterly period during the tern of this
Contract, CTW shall furnish BAWA with a statement under oath showing the quantities and sources
of all water for use or resale by CTW.
ARTICLE VI
MEASURING EQUIPMENT
6.01 At its own cost and expense, CTW shall furnish and install at the Point of Delivery
hereunder, measuring equipment properly equipped with meters, totalizers and devices of standards
type for measuring and recoding accurately the quantity of water delivered under this Contract. The
meters shall have a capacity for measuring the quantity of water delivered within an accuracy
tolerance of two per cent (2 %) plus or minus for a given rate of flow. CTW shall also install, operate
and maintain as required by BAWA, pressure regulating devices and equipment. Such measuring
equipment shall be approved by BAWA and after BAWA's approval of the installation, same shall
become property of BAWA. All measuring equipment shall be owned by BAWA, even when
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M
purchased by CTW, and all measuring equipment shall be located at the Point of Delivery as shown
on Exhibit "A."
6.02 During all reasonable hours as determined by the General Manager in his sole
discretion, BAWA, the City of Houston, and the Coastal Water Authority of Texas shall have access
to the measuring equipment. CTW may have access to all records pertinent to determining the
measurement and quantity of treated water actually delivered hereunder, but the reading of the
measuring equipment for purposes of billing shall be done by BAWA.
6.03 After approved installation thereof, BAWA shall maintain the measuring equipment
within the accuracy tolerance specified in Section 6.04 by periodic tests. BAWA shall conduct such
tests at least once every twelve (12) months and shall notify CTW at least forty-eight (48) hours in
advance of the time and location at which tests are to be made. BAWA agrees to properly test said
measuring equipment at BAWA's cost when requested to do so by CTW once every twelve (12)
months. If CTW requests an additional test within twelve (12) months, BAWA shall charge CTW an
amount equal to BAWA's costs to perform such test unless the test reveals that the equipment
registers one hundred two percent (102 %) or more for a given flow rate. In addition, CTW shall
have the right to independently check, at its own cost, said measuring equipment at any time upon
forty-eight (48) hours' notification to the General Manager and opportunity for the General Manager
to witness such tests.
6.04 Should any test of the measuring equipment in question show that the equipment
registers either more than one hundred two percent (102 %) or less than ninety-five percent (95 %) of
the water delivered for a given flow rate, the total quantity of water delivered to CTW will be
deemed to be the average daily consumption as measured by the measuring equipment when in
working order, and the meter shall be calibrated to the manufacturer's specifications (in the case of
Venturi meters) or the AWWA specifications (for all other types of meters) for the given rate of
flow, or replaced by BAWA with accurate measuring equipment that is tested before it is placed in
service. The adjustment shall be for a period extending back to the time when the inaccuracy began,
if such time is ascertainable; and if such time is not ascertainable, for a period extending back to the
last test of the measuring equipment or one hundred twenty (120) days, whichever is shorter. If, for
any reason, the measuring equipment is out of service or out of repair and the amount of treated
water delivered cannot be ascertained or computed from the reading thereof, water delivered during
the period shall be estimated and agreed upon by the parties hereto on the basis of the best data
available.
As used in this section, the expression "given rate of flow" means one of the following
selected by the General Manager:
(a) the total quantity of water delivered during the preceding period (usually a calendar
month) as reflected by the totalizer, converted to gallons per minute;
(b) high, low and intermediate rates of flow in the flow rate, as reflected by the flow
40 recording devices;
3
9 (c) the applicable Contract Quantity for the current period, usually a calendar month,
converted to gallons per minute; or
•
(d) AWWA- specified test flow rates for that size and type of meter.
6.05 In the event of a dispute between BAWA and CTW as to the accuracy of the testing
equipment used by BAWA to conduct the accuracy test, an independent check may be mutually
agreed upon between CTW and BAWA and shall be conducted by an independent measuring
equipment company suitable to both CTW and BAWA. The cost of such test shall be at CTW's sole
expense.
6.06 CTW may install, at its own cost and expense, such check meters in CTW's pipeline
or canal as may be deemed appropriate, but BAWA shall have the right of ingress and egress to such
check meters during all reasonable hours; provided, however, that billing computations shall be on
the basis of the results of the measuring equipment set forth above.
ARTICLE VII
BILLING AND PAYMENT
7.01 As used in this Article VII, the term "day" shall mean a period of twenty-four (24)
consecutive hours beginning at a mutually agreed -upon time on one calendar day and ending at the
same time on the next succeeding calendar day, and the term "month" shall mean a period beginning
at a mutually agreed -upon time on the first day of a calendar month and ending at the same time on
the first day on the next succeeding calendar month.
7.02 The measuring equipment shall be read on the day at the end of each month (or at
such period of frequency arranged between the parties) and at a mutually agreed upon time, or as
near thereto as practicable.
7.03 The quantities of treated water for which payment is due by CTW hereunder in any
month shall be the total quantity of treated water delivered to CTW in such month determined by the
measuring equipment described in Article VI hereof.
7.04 BAWA shall bill CTW at CTW's address within ten (10) days after the read date by a
statement showing the quantity of water used during the preceding month. Payment shall be due and
payable to BAWA at its offices in Baytown, Harris County, Texas, on or before the twentieth day
after receipt of such statement.
7.05 Should CTW fail to tender payment of any amount when due, interest thereon shall
accrue at the rate of ten percent per annum from the date when due until paid and CTW shall be
deemed to be in default.
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ARTICLE VIII
TITLE TO AND RESPONSIBILITY FOR WATER
8.01 As between BAWA and CTW, BAWA shall be in exclusive control and possession
of, and solely responsible for, all treated water deliverable hereunder and solely responsible for any
damage or injury caused thereby until the same shall pass through the Point of Delivery and
thereafter, CTW shall be in exclusive control and possession thereof and solely responsible for any
injury or damage caused thereby.
8.02 BAWA MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
QUALITY OR DELIVERY PRESSURE OF TREATED WATER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.03 With respect to all water handling facilities located between the Point of Delivery and
the Point of Measurement, BAWA and CTW specifically agree:
(a) that all such facilities, other than the measurement equipment itself, shall be and
remain the property of CTW subject to the terms of this Contract;
(b) that CTW shall take all reasonable steps to maintain such facilities and to prevent
leaks or discharges from such facilities;
(c) that CTW shall repair any such leak or discharge at once upon receiving notice
thereof and pay BAWA the price of any water lost by reason of such a leak or
discharge;
(d) that CTW shall correct or repair any damage caused by any such leak or discharge
and shall hold BAWA harmless from and against any such damage and claims
therefore;
(e) that CTW shall alter or relocate, at its sole cost, any such facilities whenever BAWA
shall reasonably request in writing that the same be done; and
(f) that CTW shall promptly remove such facilities and restore their locations to their
pre- existing conditions whenever this Contract is no longer in effect and BAWA so
requests in writing.
ARTICLE IX
TERM
This Contract shall be in force and effect beginning on the date of execution by BAWA until
December 31, 2021, at 8:00 a.m.
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ARTICLE X
PERFORMANCE BY BAWA AND CTW
10.01 BAWA covenants and agrees that it will not contract for the sale of water to other
users to such an extent or for such quantities as to impair BAWA's ability to perform fully and
punctually its obligations to CTW under this Contract. In case of temporary shortage of water,
notwithstanding BAWA's compliance with the portions of this Article X, BAWA shall distribute the
available supply as provided by the laws of the State of Texas, particularly Section 11.039(a) of the
Texas Water Code, as amended.
10.02 Pursuant to the Amendatory Contract entered into by the City of Houston and the San
Jacinto River Authority, which is incorporated herein by this reference, CTW covenants and agrees
that it shall take treated water for the purpose of distribution through its system, and such water shall
be used for municipal purposes (as such term is defined by TNRCC Rules, currently in effect or as
hereinafter amended) and for no other purposes. CTW covenants and agrees that such treated water
shall be sold, distributed or used and ultimately consumed only for residential household or other
strictly municipal purposes exclusively within the Service Area. No extension of these boundaries
may be made by CTW without written consent of BAWA as well as the written consent of the San
Jacinto River Authority and City of Houston, when required pursuant to the Water Supply Contract
between the City of Houston and BAWA, dated October 24, 1994. CTW agrees to include
covenants similar to those contained in this Section 10.02 in any sales or contracts for sale of water
by CTW to any other entity. CTW agrees to submit the wording of such covenants to BAWA for the
written approval of BAWA and all other required entities prior to entering into such contracts.
CTW understands and agrees that BAWA, the City of Houston and/or the San Jacinto River
Authority may enforce the covenants contained in Section 10.02 herein by an action brought directly
against CTW. In the event that BAWA and/or the City of Houston maintains any legal proceeding to
enforce such covenants, CTW agrees to indemnify BAWA and/or the City ofHouston in the amount
of all expenses relating to the legal proceeding, including, but not limited to, costs of court and
reasonable attorneys' fees.
10.03 CTW acknowledges that according to the terms of the contract between BAWA and
the City of Houston, BAWA may be liable to the City of Houston and/or the San Jacinto River
Authority for monetary damages in the event that CTW (or any purchaser of water from or through
CTW) fails to comply with the restrictions and limitations on the sale of water set out in Section
10.02 herein. CTW acknowledges that such monetary damages would amount to seventy-five
percent (75 %) of the consideration or revenue received by BAWA for the estimated amount of water
distributed, sold or used in violation of such restrictions or limitations, plus all litigation expenses,
reasonable attorney's fees, and all other remedies available to the City of Houston and/or the San
Jacinto River Authority. CTW hereby agrees to totally indemnify, defend, and save BAWA harmless
from and against any such expenses and liability which BAWA might incur or any loss BAWA
might suffer, as a result of any failure by CTW, or any purchaser of water from or through CTW, to
comply with such restriction and limitation. CTW agrees that in the event that CTW furnishes or
sells water or water services to a third party that in turn will furnish water to the ultimate consumer,
CTW shall include covenants in any such sales or contracts for sale of water to such third party(ies)
E
to ensure that said other entity(ies) will likewise indemnify, hold harmless, and, defend BAWA.
CTW agrees to submit the wording of such covenants for the approval of BAWA prior to entering
into such contracts.
CTW acknowledges that according to the terms of the contract between the City of Houston
and the San Jacinto River Authority, the City of Houston may be liable to the San Jacinto River
Authority for monetary damages in the event that CTW (or any purchaser of water from or through
CTW) fails to comply with the restrictions and limitations on the sale of water set out in Section
10.02 herein. CTW acknowledges that such monetary damages would amount to seventy-five
percent (75 %) of the consideration or revenue received by the City of Houston for the estimated
amount of water distributed, sold or used in violation of such restrictions or limitations, plus all
litigation expenses, reasonable attorney's fees, and all other remedies available to the San Jacinto
River Authority. CTW hereby agrees to fully indemnify, defend, and save the City of Houston
harmless from and against any such expenses and liability which the City of Houston might incur or
any loss the City of Houston might suffer, as a result of any failure by CTW, or any purchaser of
water from or through CTW, to comply with such restrictions and limitations. CTW agrees that in
the event that CTW furnishes or sells water or water services to a third party that in turn will furnish
water to the ultimate consumer, CTW shall include covenants in any such sales or contracts for sale
of water to such third party(ies) to ensure that said other entity(ies) will likewise indemnify, hold
harmless, and defend the City of Houston. CTW agrees to submit the wording of such covenants for
the approval of BAWA and the City of Houston prior to entering into such contracts.
10.04 CTW agrees to maintain, at its sole expense, its water wells, if any, in good repair and
working order to facilitate the use of such water wells as an emergency source of supply, if required,
should BAWA be unable to deliver the Contract Quantity of water for any reason. CTW shall bear
all costs of maintaining and supplying such emergency sources of supply.
ARTICLE XI
ENVIRONMENTAL CONSIDERATIONS
11.01 On or before the first anniversary of the effective date of this contract; CTW shall
approve, implement and throughout the term hereof remain in full compliance with a water
conservation program, including, but not limited to, a drought contingency plan, in accordance with
the requirements of the TNRCC. Such plan (and any amendments thereto) shall be submitted to the
appropriate authority as required by state law for review and approval. In the event that the TNRCC
adopts new requirements, CTW shall adopt an amended plan and submit the same to the appropriate
authority for review and approval.
11.02 CTW agrees that in the event that CTW furnishes or sells water or water services to a
third party that in turn will furnish water to the ultimate consumer, the requirements of this Contract
relative to water conservation shall be met through contractual agreements between CTW and the
third party, providing for the implementation and continued compliance with a water conservation
• program consistent with the requirements of the TNRCC.
10
ARTICLE XII
REMEDIES UPON DEFAULT
12.01 In the event of any default by CTW in the performance of any of CTW's obligations
hereunder which shall continue for a period of thirty (30) days or more, BAWA shall give written
notice to CTW specifying the matter with respect to which CTW is in default and requesting that the
same be remedied with promptness and dispatch. In the event CTW, within forty-five (45) days after
the mailing of such notice by BAWA, has failed to remedy the matter in default, BAWA may
suspend further delivery of treated water to CTW hereunder; and in the event such default on the part
of CTW continues for an-additional thirty (30) days, BAWA may, by an additional written notice to
CTW, cancel and terminate this contract, whereupon all rights of CTW and all obligations ofBAWA
hereunder shall terminate and be at an end. The exercise of such rights shall be in addition to any
other remedies available to BAWA under the laws of the State of Texas.
12.02 During any monthly period in which BAWA is unable to deliver to CTW, CTW's
daily requirements of water, whether as a result of temporary curtailments resulting from temporary
shortages as provided in Section 10.01 hereof or of force majeure as provided in Article XM hereof,
CTW shall be obligated to pay BAWA only for the quantities of treated water actually delivered to
CTW under this contract during such month. During any such period, CTW shall be free to obtain
treated water from other sources.
12.03 The failure of either party to insist in anyone or more instance upon performance of
any of the terms, covenants or conditions of this Contract, shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant, or condition by the other party
hereto, but the obligation of such other party with respect to future performance shall continue in full
force and effect.
ARTICLE XIII
FORCE MAJEURE
13.01 In the event either party is rendered unable, wholly or in part, by force majeure to
carry out any of its obligations under this Contract other than the payment of money, or in the event
CTW is rendered unable, wholly or in part, by force majeure to operate CTW's facilities, it is agreed
that on such party's giving notice and full particulars of such force majeure in writing or by telefax or
telegraph to the other party as soon as possible after the occurrence of the cause relied upon, then the
obligations of the party given such notice, to the extent it is affected by force majeure and to the
extent that due diligence is being used to resume performance at the earliest practicable time, shall be
suspended during the continuance of any inability so caused as to the extent provided but for no
longer period. Such cause shall as far as possible be remedied with all reasonable dispatch.
13.02 The term "force majeure" as used herein, shall include, but not be limited to, acts of
God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lighting, earthquakes, fires, storms, floods, washouts,
11
droughts, tornadoes, hurricanes, arrests and restraints of government and people, explosions,
breakage or damage to machinery, equipment, pipelines or canals, and any other inabilities of either
party whether similar to those enumerated or otherwise and not within the control of the party
claiming such inability which by the exercise of due diligence and care such party could not have
avoided.
13.03 It is understood and agreed that the settlement of strikes or lockouts shall be entirely
within the discretion of the party having the difficulty and the above requirement that any force
majeure be remedied with all reasonable dispatch shall not require the settlement of strikes or
lockouts by acceding to demands of the opposing party when such course is inadvisable in the
discretion of the party having the difficulty.
13.04 CTW shall not be guaranteed any specific quantity or pressure of water whenever
BAWA's treated water supply is limited or when BAWA's equipment may become inoperative due
to unforeseen breakdown or scheduled maintenance and repairs, and BAWA is in no case to be held
to any liability for failure to furnish any specific amount or pressure of water. BAWA agrees that it
will attempt to make any necessary repairs or adjustments to its equipment within reasonable times
mutually agreeable to both parties. It is further agreed that BAWA may, without liability of default,
interrupt its services hereunder to make necessary alterations to or repairs in its facilities, but only if
such interruption cannot otherwise reasonably be avoided. BAWA shall schedule interruptions in
advance after consultation with CTW.
ARTICLE XIV
ADDRESS AND NOTICES
14.01 Until CTW is otherwise notified in writing by BAWA, the address of BAWA is and
shall remain as follows:
Baytown Area Water Authority
Attn: General Manager
2401 Market Street
Baytown, Texas 77520
Until BAWA is otherwise notified in writing by CTW, the address of CTW is and shall
remain as follows:
Country Terrace Water Co, Inc.
Attn: President
P.O. Box 24433
Houston, Texas 77229 -4433
14.02 All written notices, statements, and payments required or permitted to be given under
. this Contract from one party to the other shall be deemed given by telefax or the deposit in a United
States Postal Service mailbox or receptacle of certified or registered mail, with proper postage
12
affixed thereto, addressed to the respective other party at the address set forth above or at such other
address as the parties respectively shall designate by written notice.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.01 This contract shall bind and benefit the respective parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either party without first obtaining the
written consent of the other; provided, however, that CTW shall have the right, without any consent
of BAWA to pledge or otherwise assign CTW's rights hereunder to the extent required by any
mortgage, deed of trust or other similar agreement to which CTW may be, or hereafter become a
party; provided that, CTW's successor or assignee, as the case may be, is a responsible person or
entity and shall (by operation of law or otherwise) expressly assume CTW's obligations hereunder;
and provided, further, however, that no successor or assignee of CTW shall be entitled to receive
water or sell water to a third party under this Contract unless and until the City of Houston and the
San Jacinto River Authority give their written consent to such assignment.
15.02 This Contract shall be for the sole and exclusive benefit of BAWA and CTW and
shall not be construed to confer any rights upon any third party, except as expressly provided in
Article X. BAWA shall never be subject to any liability in damages to any customer of CTW for any
failure to perform under this Contract.
15.03 This Contract shall be subject to all present and future valid laws, orders, rules and
regulations of the United States of America and the State of Texas and of any regulatory body having
j urisdiction.
15.04 This instrument contains all the agreements made between the parties concerning the
sale and delivery of water by BAWA to CTW at the Point of Delivery set out in this Contract.
15.05 The construction, interpretation and performance of this Contract shall be governed
by the laws of the State of Texas, and venue shall lie in Harris County, Texas.
15.06 All parties agree that should any provision of this Contract be determined to be
invalid or unenforceable, such determination shall not affect any other term of this Contract, which
shall continue in full force and effect. The parties agree that this Agreement shall not be construed in
favor of or against any party on the basis that the party did or did not author this Agreement.
15.07 Each party has the full power and authority to enter into and- perform this Contract,
and the person signing this Contract on behalf of each party has been properly authorized and
empowered to enter into this Contract. The persons executing this Contract hereby represent that
they have authorization to sign on behalf of their respective entities.
15.08 The parties acknowledge that they have read, understand and intend to be bound by
the terms and conditions of this Contract.
13
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n
IN WITNESS WHEREOF, the parties hereto have executed this contract as of the,�day of
September, 2001, in multiple copies each of which shall be deemed to be an original, but all of which
shall constitute but one and the same contract.
BAYTOWN AREA WATER AUTHORITY
1
n
ROBERT L. GILLETTE, President
ATTEST:
PETER R. BUENZ, Sec ary
COUNTRY TERRACE WATER CO., INC.
4S ature
j ePr`9 ljow
Printed Name
Title
STATE OF TEXAS
COUNTY OF HARRIS
Before me, _0&=, M EK"L4- the undersigned notary public, on this day
personally appeared E,2 Kv in his/her capacity as oW nleiZ of Country
Terrace Water Co., Inc.
(4 one)
known to me
proved to me on the oath of
proved to me through his current
description of identification card or
or
"-7S9Z ► X -bL
other document issued by the federal
goverment or any state government that contains the photograph and signature of
the acknowledging person)
14
•
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.
t
Given under my hand and seal of office thi day of September, 2001.
— pa"��
Notary Public in and for the State of Texas
PATTI MERRELL
* * Notary Public, State of Tp"S
Canmissim Expires Nov. 27, 2004
cAdh274\13AWA \country Terrace WateAWaterSuppKontract082001
15
My commission expires: // %a 7lo y
APPROVED TO CONFORMING TO
REQUIREMENTS OF CONTRACT
NO. 34739, SECTIONS 9.2 AND ":
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CITY OF HOUSTON
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WATER COMPANY r °
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EMU
ORDINANCE NO. 9551
• 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 A CONTRACT WITH THOS. Y. PICKETT &
COMPANY, INC., FOR THE APPRAISAL OF PROPERTY WITHIN THE BAYTOWN
INDUSTRIAL DISTRICTS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF TIIE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the
City Manager and City Clerk of the City of Baytown to execute and attest to a contract with Thos. Y. Pickett &
Company, Inc., for the appraisal of property within the Baytown Industrial Districts. A copy of said
Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Thos. Y. Pickett
& Company, Inc., of a sum not to exceed TWENTY -EIGHT THOUSAND AND NO 1100 DOLLARS
($28,000.00).
Section 3: That the City Manager is hereby granted the general authority to approve a decrease or
an increase in costs by TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less,
provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent
(25 %).
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 10''' day of April, 2003.
ATTEST:
2a_
GA W. MITH--, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, SR ity Attorney
FAKaren \Fi1es \City Council\ OrdinancesCFYPickett2003Ordinance .doc
PETE C. ALFARO, N4fayor
r:
Appraisal Agreement for Baytown Industrial Districts
THE STATE OF TEXAS
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTIES OF HARRIS §
AND CHAMBERS §
THAT WHEREAS, the City Council of the City of Baytown, Harris and Chambers Counties,
Texas, hereinafter referred to as the "City," does not have available among the files and records of
such City a survey of specific industrial and utility plants of whatever character for the Baytown
Industrial Districts, nor do they have the necessary scientific or technical skill to compile, evaluate,
and make such survey, for the convenience and information of the Tax Assessor - Collector of said
City in assessing the valuations of such properties in legal conformity with all other property
valuations in said City for the Baytown Industrial Districts for which the City of Baytown collects
taxes; and
WHEREAS, the Industrial Appraisal Review Board and the City of Baytown, sitting as such
board, as required by law, has heretofore and will in the future have submitted to it for inspection,
correction, or equalization and approval, renditions of or assessments against specific industrial and
utility plants; and in the performance of the duties by law upon such board, will have need for
testimony pertaining to such properties, requiring scientific knowledge, technical skill and
experience in analysis and appraisal of such properties; and
WHEREAS, the City Council of the City of Baytown for the Baytown Industrial Districts has
determined the need and advisability of employing experts skilled in the matter of analysis and
appraisal of such properties to compile information for use by the Industrial Appraisal Review Board
in its inspecting, correcting, equalizing, and approving the valuations of or assessments against such
properties, duly submitted to it by the Tax Assessor - Collector, for the City of Baytown for the
Baytown Industrial Districts; and
WHEREAS, it is ascertained and determined that Thos. Y. Pickett & Company, Inc., of
Dallas County, Texas, hereinafter referred to as "Company," are experts with many years experience
in such matters and employ professional engineers, registered in this State, who have scientific and
technical knowledge; and
WHEREAS, it is found and determined to be to the advantage of the City of Baytown for the
Baytown Industrial Districts that said City Council employ the services of Thos. Y. Pickett &
Company, Inc., for said purposes;
IT IS THEREFORE AGREED BY AND BETWEEN the City of Baytown for the Baytown
Industrial Districts of Harris and Chambers Counties, Texas, acting herein by and through its City
Council, and Thos. Y. Pickett & Company, Inc., of Dallas County, Texas, as follows:
EMU A
Appraisal Agreement for Baytown Industrial Districts, Page 1
I.
® The Company agrees and obligates itself to make such analysis and survey as of January 1,
2003, through December 31, 2003, which shall include all of the information which the Company
after exercising due diligence is able to procure pertaining to the character, quality, quantity, as well
as the value of specific industrial and uti lity plants within the City and within the Baytown Industrial
Districts for use of the Industrial Appraisal Review Board in reviewing and equalizing the
assessments against such properties submitted to it by the Tax Assessor- Collector for said Board's
approval, and for the further purpose of furnishing the testimony as hereinafter specified.
•
M
The Company further agrees to provide such expert testimony as maybe required in any civil
litigation arising from the appraisals of property covered by this contract, at a rate not to exceed SIX
HUNDRED AND NO 1100 DOLLARS ($600.00) per day. The Company shall also be reimbursed by
the City for reasonable travel and expenses.
Appraisal Agreement for Baytown Industrial Districts, Page 2
• 111.
is
The Company further agrees to compile all information procured during its investigation,
analysis, and survey, in such a manner as to facilitate and expedite the introduction of such expert
testimony as requested by the Industrial Appraisal Review Board, based on such information and
presented in concise and intelligent form acceptable to the Board.
WFA
The Company further agrees to make available at stated sessions of the Industrial Appraisal
Review Board, such qualified, competent, technical personnel as maybe required or requested by the
City and to furnish for the benefit of the Industrial Appraisal Review Board, such expert testimony as
may be deemed advisable by said Board pertaining to the estimated valuation of specific industrial
and utility plants as enumerated, as of January 1, 2003:
ADVANCED AROMATICS, INC.
AIR PRODUCTS, INCORPORATED
BAYER CORPORATION
BAYTOWN ENERGY CENTER, L.P. (FKA CALPINE CORPORATION)
BORDEN CHEMICAL, INC.
BP AMOCO CHEMICAL COMPANY
CHEVRON CHEMICAL COMPANY
ECOLOCHEM, INC.
EL DORADO NITROGEN COMPANY
ENGINEERED CARBONS, INC.
EXXON MOBIL CORPORATION (FKA EXXON CORPORATION)
FIRST CHEMICAL TEXAS, L.P.
HOME DEPOT U.S.A., INC.
KOPPEL STEEL CORPORATION
NATURAL GAS ODORIZING, INC.
RELIANT ENERGY HL &P
RHODIA (FKA RHONE- POULENC, INC.)
SAMSON CONTROLS, INC.
SAW PIPES USA, INC.
SEAPAC, INC.
SUN CHEMICAL CORPORATION
TEXAS BRINE COMPANY BAYTOWN, LLC
UNTMAST, INC.
U.S. DENRO STEEL, INC.
U.S. FILTER CORPORATION
USX CORPORATION
DOME PETROCHEMICAL (FORMERLY WEST BAY ORGANICS, L.C.)
Appraisal Agreement for Baytown Industrial Districts, Page 3
It is expressly understood that Thos. Y. Pickett & Company, Inc., will work diligently with
the Harris and Chambers County Appraisal Districts and the appraisal firm of Pritchard & Abbott in
coordinating and allocating values located in or appraised by the Harris and Chambers County
Appraisal Districts. All such efforts will be done in a harmonious manner in properly describing,
defining and allocating values for the Baytown Industrial Districts. Moreover, it is further
understood that Thos. Y. Pickett & Company, Inc., cannot consistently defend or testify at Review
Board hearings or civil courts having jurisdiction to any value assigned or adjudicated by the
Industrial Appraisal Review Board for the respective Appraisal Districts in its final action in
certifying valuations for such properties for 2003.
V.
Company further understands and agrees that it shall render to the City general advice on the
planning for the impact of the Pollution Control Exemptions granted by the Texas Natural Resources
Conservation Commission and valued under the authority of Harris and Chambers County Appraisal
District, as applicable, and the Baytown Industrial Appraisal Review Board for 2003, and new
construction exemptions granted by the City as defined within the industrial district agreements.
VI.
FOR AND IN CONSIDERATION of the skilled services, technical knowledge and
experience of the Company, in performance of the obligations herein agreed to be performed by the
Company, the City agrees and obligates itself to pay the Company the sum of TWENTY -EIGHT
THOUSAND AND NO /100 DOLLARS ($28,000.00) for the year 2003, as full compensation for the
services rendered the City for the Baytown Industrial Districts under the terms of this Agreement.
VII.
Payments shall be made on this contract at the office of the Company, 4464 Sigma Road,
Dallas, Texas 75244, from time to time as the work progresses, as follows: FOUR THOUSAND
AND NO /100 DOLLARS ($4,000.00) on the first day of April, May, June and July 2003, and the
balance shall be paid upon completion of the work and after final action has been taken by the
Industrial Appraisal Review Board in and for the City of Baytown for the Baytown Industrial
Districts for the year 2003.
BI"
The said Thos. Y. Pickett & Company, Inc., further agrees that in no way will the said City of
Baytown be obligated to Thos. Y. Pickett & Company, Inc., or their assistants, for salaries, expenses,
• or materials except as above stated.
AAparaisal Agreement for Baytown Industrial Districts, Page 4
• ,x
Throughout the term of this Agreement, the Company at its on expense shall purchase,
maintain, and keep in force and effect insurance against claims for inj cries to or death of persons or
damages to property which may arise out of or result from the Company's operations and/or
performance of the services under this Agreement, whether such operations and/or performance be
by the Company, its officers, 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 Company's insurance coverage shall be primary insurance with respect to the City, its
officers, agents, and employees. Any insurance or self - insurance maintained by the City, its officials,
agents and employees, shall be considered in excess of the City's insurance and shall not contribute
to it. Further, the Company shall include all subcontractors, if any, 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 Agreement:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Per Occurrence: $ 500,000
Fire Damage: $ 50,000
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.
Business Automobile policy (BAP)
Combined Single Limits: $ 500,000
a. Coverage for "Any Auto"
Errors and Omissions (E &O)
Limit: $ 250,000
a. Claims -made form is acceptable. Coverage will be in force for two (2) years
after Project is completed.
Workers' Compensation: Statutory Limits
Employer's Liability: $500,000
a. Waiver of subrogation is required.
0 Upon Execution of this Agreement, the Company shall file with the City valid Certificates of
Insurance and endorsements acceptable to the City. Such Certificates shall contain a provision that
Appraisal Agreement for Baytown Industrial Districts, Page 5
® 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 Company shall also file with the City valid Certificates of Insurance covering all
Subcontractors.
The following are general requirements which are applicable to all policies:
a. AM Best Rating of A:VII or better.
b. Insurance carriers licensed and admitted to do business in the State of Texas will be
accepted.
C. Liability policies will be occurrence form. E &O can be on claims -made basis.
d. City of Baytown, its officials and employees are to be added as Additional Insureds
to liability policies.
e. 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's
representative. Certificates of insurance showing evidence of insurance coverage
shall be provided to the City of Baytown's representative prior to execution of this
Agreement.
f. 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 the City of Baytown's
representative.
94
This Agreement may be terminated by the City of Baytown for cause or for convenience by
giving ten (10) days' written notice to the Company. If this Agreement is so terminated by the City,
the Company shall be compensated only for the services actually performed and tendered to the City
in accordance with the schedule enumerated in article VII hereof. Upon such notice of termination
by the City, the Company shall stop work immediately, mitigate any costs to be paid by the City, and
forward all documents which the Company has created in furtherance of this Agreement to the
Owner.
X1.
INDEMNITY
THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD
HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND
Appraisal Agreement for Baytown Industrial Districts, Page 6
•
EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY
KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS,
AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE SERVICES PERFORMED BY THE COMPANY
PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT
OF THE COMPANY'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT
OR OMISSION BY THE COMPANY, ITS AGENTS, SERVANTS,
EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEES
PERFORMED IN FURTHERANCE OF THIS AGREEMENT. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE
COMPANY AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY THE COMPANY TO INDEMNIFY
AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE
COMPANY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE
SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH
OR DAMAGE. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE,
THE COMPANY FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE
TO THE CITY. THIS ARTICLE SHALL SURVIVE THE EXPIRATION OR
EARLIER TERMINATION OF THIS AGREEMENT AND SHALL NOT
EXPIRE.
ON
By this Agreement, the City does not consent to litigation or suit, and the City hereby
expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or
any other contractor agreement, any charter, or. applicable state law. The Company assumes full
responsibility for the services performed hereunder.
11
Unless otherwise specified, written notice shall be deemed to have been duly served if
delivered in person to the individual, or if delivered at or sent by overnight or facsimile transmission
or if delivered or sent by certified or registered mail to its business address as indicated hereinbelow:
Appraisal Agreement for Baytown Industrial Districts, Page 7
COMPANY
Thos. Y. Pickett & Company, Inc.
Attn: Robert T. Lehn
4464 Sigma Road
Dallas, Texas 75244
Fax: (972) 387 -4944
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax: (281) 420 -6586
Each party will have the right to change its business address by giving at least thirty (30)
calendar days' written notice to the other party of such change. Notice given by mail shall be deemed
given three (3) calendar days after the date of the mailing thereof.
XIV.
The parties agree that this Agreement shall not be construed in favor of or against any party
on the basis that the party did or did not author this Agreement.
/:a
This Agreement shall not bestow any rights upon any third party, but rather shall bind the
Company and the City only.
XVI.
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.
0.14 LTA
The Company shall not sell, assign or transfer any of its rights or obligations under this
contract in whole or in part without prior written consent of the City.
Appraisal Agreement for Baytown Industrial Districts, Page 8
0 XvIII.
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 to exercise any right or
remedy occurring as a result of any future default or failure of performance.
I:i►.�
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.
M
All parties agree that should any provision of this Agreement be determined to be invalid or
enforceable, such determination shall not affect any other term of this Agreement, which shall
continue in full force and effect.
The officers executing this Agreement on behalf of the parties hereby confirm that such
officers have full authority to execute this Agreement and to bind the party he represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one and
the same Agreement on the — day of , 2003, the date of the execution by the
City Manager of the City of Baytown.
AApgraisal Agreement for Baytown Industrial Districts, Page 9
CITY OF BAYTOWN, TEXAS
LM
GARY JACKSON, City Manager
0 ATTEST:
•
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
ATTEST:
Secretary
Printed Name
FAKaren\FileslTax12003 ContracATYPickett2003.doc
Appraisal Agreement for Baytown Industrial Districts, Page 10
THOS. Y. PICKETT & COMPANY, INC.
e
ROBERT T. LEHN, Vice President
ORDINANCE NO. 9550
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, DECLARING THE UNOPPOSED CANDIDATE FOR OFFICE OF
COUNCIL MEMBER, DISTRICT ONE ELECTED; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
WHEREAS, the City of Baytown is a political subdivision in which write -in votes may
be counted only for names appearing on a list of write -in candidates; and
WHEREAS, Council Members of the City Council are elected from single - member
districts; and
WHEREAS, on February 13, 2003, the City Council of the City of Baytown ordered the
regular municipal election of the City of Baytown to be held between the hours of seven o'clock
a.m. and seven o'clock p.m. on the 3`d day of May, 2003, in the City of Baytown, Texas, for the
purpose of electing the following members of the City Council:
Council Member from District No. One;
Council Member from District No. Two; and
Council Member from District No. Three; and
WHEREAS, the candidate whose name is to appear on the ballot for Council District No.
One is unopposed; and
WHEREAS, no proposition is to appear on the ballot of the regular municipal election
scheduled to be held on the 3`d day of May, 2003; and
WHEREAS, after the filing deadlines for placement on the ballot and list of write -in
candidates, the City Clerk certified to the City Council in writing that the candidate whose name
is to appear on the ballot for Council District No. 1 is unopposed for election to office; and
WHEREAS, the City Council of the City of Baytown desires to take action on such
certification; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the facts and matters set forth in the recitals of this Ordinance are
hereby found to be true and correct.
Section 2: That the City Council of the City of Baytown hereby declares the
unopposed candidate whose name was to appear on the ballot for Council District No. One
elected to the office of Council Member, District One.
® Section 3: That the regular municipal election to be held for the purposes of electing
a Council Member from District One is hereby cancelled.
Section 4: That the City Cleric is hereby ordered to post a copy of this ordinance on
election day at each polling place in Council District No. One that would have been used in the
regular municipal election.
Section 5: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown, Texas.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown on this the 10th day of April, 2003.
ATTEST:
i�
CT Y Si1,HTH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR ity Attorney
0 1—AKaren\Fi1es \City Council\ Ordinances \RenteriaElected2Offce.doc
2
PETE C. ALPARO, Mayor
ORDINANCE NO. 9549
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
APPROVING THE PURCHASE AND SALE AGREEMENT WITH DEGUSSA
ENGINEERED CARBONS, LP, FOR THE PURCHASE OF 47.6077 ACRES
FOR THE PROPOSED NORTHEAST DISTRICT WASTEWATER
TREATMENT PLANT; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
0
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section l: That the City Council of the City of Baytown, Texas, hereby authorizes a
Purchase and Sale Agreement with Degussa Engineered Carbons, LP, for the purchase of 47.6077 acres
for the proposed Northeast District Wastewater Treatment Plant. A copy of said agreement is attached
hereto as Exhibit "A" and incorporated herein 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 I Oh day of April, 2003.
PETE C. ALFARO, Ma r
ATTEST:
GA9Y VV. MITH, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, S ., ity Attorney
FAKaren\Files \City Counci l\ Ordinances\ DegussallortheastWastewaterTreatment .doc
• PURCHASE AND SALE AGREEMENT
AGREEMENT made this 11`h day of April, 2003, between DEGUSSA ENGINEERED
CARBONS, LP., a Delaware limited partnership, qualified to do business in the State of Texas
having an address at 1215 Main Street, Port Neches, Texas 77651 (hereinafter called "Seller "), and
THE CITY OF BAYTOWN, having an address at 2401 Market Street, Baytown, Texas 77520
(hereinafter called "Purchaser ")
FOR AND IN CONSIDERATION OF the mutual covenants and agreements contained
herein and intending to be legally bound hereby, Seller agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller the Premises subject to the terms and conditions set forth in this
Agreement.
1. DEFINITIONS
1.1 Defined terms. The following terms, when used herein with initial capitalization, shall
have the meanings specified in this section:
1.1.1 "Closing" shall mean the payment of the Purchase Price (defined below) to
Seller and the delivery of the Deed (defined below) to Purchaser in recordable form in
accordance with this Agreement.
1.1.2 "Closinz Date" shall mean the date on which the Closing occurs pursuant to
this Agreement.
1.1.3 "Deed" is defined in section 4.1 (Deed) below.
1.1.4 "Premises" shall mean all of Seller's right, title and interest in and to that
certain parcel of land described in Schedule A annexed hereto and hereby made a part hereof,
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• together with Seller's right, title and interest in and to the buildings and improvements now or
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hereafter located thereon; all fixtures owned by Seller and situated upon said parcel of land;
and all right, title and interest, if any, of Seller in and to (1) any strips, gores, hereditaments
and appurtenances in or affecting said parcel of land, and (ii) any highways, streets, roads and
avenues abutting said parcel of land to the center lines thereof.
1. 1.5 "Purchase Price" is defined in section 2.1 (Payment of Purchase Price) below.
1.2 Interpretation. Whenever used in this Agreement, the singular number shall include the
plural, the plural shall include the singular, and the use of any gender shall include all genders. The
words "includes" and "including" shall not be deemed to be limiting, whether or not followed by the
words "without limitation" or the like. References to a section shall mean a section of this
Agreement unless the context requires otherwise.
2. PURCHASE PRICE
2.1 Payment of Purchase Price. The purchase price for the Premises ( "Purchase Price ") and
rights assigned herein shall be ONE HUNDRED THIRTY -FIVE THOUSAND AND NO /100
DOLLARS ($135,000.00) to be paid by Purchaser to Seller, subject to adjustment as expressly set
forth herein, at the Closing by wire transfer of immediately available funds denominated in U.S.
dollars or by such other means as Seller may direct.
3. TITLE
3.1 Permitted Exceptions. Seller shall deliver title to the Premises subject to the following
exceptions (collectively the "Permitted Exceptions "):
(i) Building, building line, use and occupancy restrictions;
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i(ii) Zoning and building laws, rules, regulations, codes and ordinances of the municipal,
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local, village, town, city, state and federal governmental authorities having
jurisdiction over the Premises;
(iii) Any state of facts that an accurate survey of the Premises would disclose;
(iv) Any state of facts that an inspection of the Premises would disclose;
(v) Rights, if any, heretofore or hereafter acquired by any utility company to lay,
construct, install, maintain, repair and operate lines, cables, poles, distribution boxes,
cable boxes, meters, conduits, pipes and the like, in, under, over and upon the
Premises;
(vi) Consents, if any, by Seller, and by any former owner of the Premises, to the erection
and maintenance of any structures in, under, over and upon sidewalks, highways,
streets, roads and avenues abutting the Premises;
(vii) All laws, rules, regulations, codes, ordinances, orders, permits, consent orders,
consent agreements and other governmental requirements applicable to the Premises;
(viii) Variations between the lines of record title and any fences, retaining walls, hedges
and the like;
(ix) Those restrictions, covenants, conditions, exceptions, reservations, agreements,
easements and other matters affecting title to the Premises that are of record, whether
or not more particularly described in Schedule C annexed hereto and hereby made a
part hereof,
(x) Titles or rights of any party to: tidelands, or lands compromising the shores or beds of
navigable or perennial rivers and streams, lakes, bays, gulfs or oceans; lands beyond
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0 the line of the harbor or bulkhead lines as established or changed by any government;
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statutory water rights including, riparian rights; or to the area extending from the line
of mean low tide to the line of vegetation, or the rights of access to that area or
easement along and across that area;
(xi) Police powers of governmental authorities; and
(xii) Rights, titles and interests of others in any highways, streets, roads and avenues
abutting, entering onto or running through the Premises.
3.2 Title. Purchaser shall accept such title to the Premises as any title insurance company
authorized to do business in the State of Texas is willing to insure, subject only to the title insurance
company's normal and standard title exceptions and to the Permitted Exceptions. This provision
shall not be deemed to require Purchaser to obtain title insurance with respect to the Premises.
3.3 Franchise Taxes. Unpaid franchise taxes of any corporation in the chain of title to the
Premises shall not be deemed an objection to title thereto if, at the Closing, Seller deposits with the
title insurance company insuring Purchaser's title such sum as may be required by such company to
affirmatively insure that such taxes will not be collected by recourse to the Premises.
4. FURTHER AGREEMENTS OF SELLER AND PURCHASER
4.1 Deed. Seller shall convey the Premises to Purchaser by a special warranty deed (the
"Deed "), which Deed shall contain a restrictive covenant that shall restrict the Purchasers' use of the
Premises to a wastewater treatment facility or for other municipal purposes and which Deed shall
also contain a restrictive covenant that requires any subsequent purchaser of the Premises to assume
the Purchaser's covenants set forth in Section 5 hereof. Seller shall deliver, or cause to be delivered,
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• the Deed to Purchaser at the Closing. A copy of such Deed is attached hereto as Schedule B and
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incorporated herein for all intents and purposes.
4.2 Transfer Taxes and Other Expenses. Seller shall pay or cause to be paid (a) all real estate
transfer taxes due with respect to the conveyance of the Premises in accordance with Section 8.1 of
this Agreement and (b) the legal fees and other expenses incurred by Seller with respect to the
transaction contemplated by this Agreement (whether incurred prior to, on or after the Closing Date).
Purchaser shall pay or cause to be paid (a) all real estate transfer taxes due with respect to the
conveyance of the Premises in accordance with Section 8.1 of this Agreement, (b) all title
examination, title insurance, survey, inspection and examination with respect to the Premises, if any,
(c) all fees with respect to the recordation and filing of the Deed and (d) the legal fees and other
expenses incurred by Purchaser with respect to the transaction contemplated by this Agreement
(whether incurred prior to, on or after the Closing Date). Each party hereto shall execute any returns,
reports, affidavits or other tax forms required for the recordation and filing of the Deed.
4.3 Authority. Seller and Purchaser each covenants, represents and warrants that (a) it has all
of the power and authority necessary to execute this Agreement and to perform all of the actions
contemplated by this Agreement, and (b) such execution and performance has been authorized by all
necessary resolutions and votes.
4.4 Consents. Seller and Purchaser each covenants, represents and warrants that it will
diligently seek all governmental and other consents, approvals, orders and authorizations necessary
or appropriate for the consummation of the transaction contemplated by this Agreement.
4.5 Tax Matters. After Closing, the parties agree to amend the Industrial District Agreement
among the parties dated October 24, 1996, to reflect the sale of the Premises to Purchaser. Purchaser
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• further agrees that any payments due after the Closing Date will be prorated in accordance with
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Section 8.1. Commencing in 2004, real property covered under the Industrial District Agreement
shall be based on an assessment of such property without the Premises. Purchaser, to the extent
necessary, shall adjust in such agreement Seller's tax parcels to reflect the sale of the Premises
hereunder. Purchaser further agrees to hold the Seller harmless from any rollback or additional taxes
that Purchaser may be liable for after the Closing due to a change in the use of the Premises. This
paragraph shall survive the Closing.
4.6 Delivery of Possession. Upon Purchaser's satisfaction of all of the obligations to be
performed by it at or prior to the Closing pursuant to, and in accordance with, this Agreement, Seller
shall deliver exclusive possession of the Premises to Purchaser at the Closing free of tenancies or
other occupancies by parties claiming a tenancy or other right of occupancy by or through a written
agreement with Seller.
4.7 Reconveyance. In the event that the Purchaser elects not to proceed with the
construction of its proposed wastewater treatment facility on the Premises by December 31, 2020,
then Purchaser agrees to reconvey the Premises to Seller upon Seller's return of the Purchase Price.
This paragraph 4.7 shall survive the Closing.
4.8 Assignment of Rights. Seller represents and warrants that Seller has the right to cross
the fee strips of land owned by third parties, which divides the Premises and that Seller has the right
to assign such rights. As such, Seller hereby grants to Purchaser all of its rights and authority to
cross the fee strips of land owned by third parties and shall execute all documents deemed necessary
by the Purchaser to transfer and assign these rights. Should Seller be unable or otherwise fail to
assign such rights in a manner necessary for the Purchaser to use the Premises for its intended use as
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enumerated above on or before the Closing Date, the Purchaser shall have the absolute right to
terminate this Agreement without any further liability or obligation hereunder.
5. ENVIRONMENTAL PROVISIONS
5.1 Contingency. This entire Agreement is expressly contingent upon and subject to the
approval of the City Manager of the City of Baytown of an environmental site assessment ( "ESA ")
of the Premises. Approval of the City Manager shall not be unreasonably withheld. Purchaser shall
cause to be performed a Phase I ESA within 90 days after the effective date of this Agreement.
Should the City Manager determine that based upon such Phase I ESA, a Phase II ESA is necessary,
Purchaser shall cause the Phase II ESA to be performed within 120 days after the effective date of
this Agreement. Should the ESA not be approved by the City Manager within 90 days after the
effective date of this Agreement if only a Phase I ESA was performed or within 120 days after the
effective date of this Agreement if a Phase II ESA was performed, the Purchaser shall have the
absolute right to terminate this Agreement without any further liability or obligation hereunder.
Should Purchaser fail to complete the assessment within the 90 -day or 120 -day period prescribed
above or not obtain the approval of the City Manager within the applicable time period, Seller, in it
sole discretion, may terminate the agreement, without any further liability or obligation to Purchaser.
5.2 No warranties. Notwithstanding anything to the contrary contained in this Agreement, it
is understood and agreed that with respect to the physical and environmental condition of the
Premises, the Premises is being sold and conveyed "As Is," "Where Is" and "With All Faults" and
subject to any Environmental Condition (as such term is defined below) that may exist, provided that
Seller discloses prior to closing without any representation or warranty Environmental Conditions
known to Seller to exist on the Premises. Purchaser hereby expressly acknowledges and agrees that
0 (i) Purchaser has thoroughly inspected and examined the Premises to the extent deemed necessary by
Purchaser in order to enable Purchaser to evaluate the purchase of the Premises, and (ii) Purchaser is
relying upon not only such inspections, examination, and evaluation of the Premises by Purchaser
but also on representations made by Seller of Environmental Conditions known to Seller in
purchasing the Premises on an "As Is," "Where Is" and "With All Faults" basis without
representations, warranties or covenants, express or implied, of any kind or nature.
5.3 Post-Closing Release. Purchaser hereby assumes the risk that Environmental Conditions
may exist on the Premises and hereby releases Seller, its predecessors, successors and assigns from
any and all damages, losses, costs, claims, actions, proceedings, obligations, fines, expenses or
liabilities (whether absolute, accrued, conditional or otherwise), including, but not limited to, out -of-
pocket expenses and reasonable attorneys' and accountants' fees and expenses which might arise out
of or in connection with the physical or Environmental Condition of the Premises. As used herein,
the term "Environmental Condition" shall mean any condition, fact, event or circumstance in any
way related to the presence of chemicals, contaminants or pollutants of any description on or near the
Premises, or on, under or upon to the soil, ground water, surface water of the Premises which could
or does result in any Losses, including, without limitation, any such condition resulting from the
past, present or future operations conducted on the Premises.
5.4 Waiver of Claims. Purchaser acknowledges that it is familiar with the operations and
emissions from the Seller's carbon black facility that is adjacent to the Premises and hereby agrees to
release and waive any claim against Seller, its successors and assigns, that may arise in the future as
a result of the migration of permitted plant emissions from such facility, as it may be expanded or
changed from time to time, onto the Premises.
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• 5.5 Survival. This paragraph 5 shall survive the closing of this Agreement and shall be
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binding upon the parties in the event of a conveyance of the Premises to Purchaser under this
contract.
6. BROKERS
6.1 Broker's Fees. Seller and Purchaser each covenants, represents and warrants that it has
not dealt with a broker or finder in connection with this transaction. Neither party will be liable to
the other for any and all losses, damages, suits, actions, proceedings, liens, judgments, costs,
expenses (including reasonable attorneys' fees), penalties, orders, obligations, indebtedness and
liabilities (absolute or contingent) that the other party sustains, incurs or is exposed to by reason of
any claim, for a broker's, finder's or similar fee or commission with respect to this transaction. This
paragraph shall survive the Closing.
7. CLOSING
7.1. Closin . The Closing shall take place at the offices of Purchaser on or about
Septemberl0, 2003 at 10:30 AM or at such other location, date and time as Seller and Purchaser
may agree in writing.
8. ADJUSTMENTS
8.1 Adjustments. Real estate taxes and any assessments shall be apportioned as of the day
before the Closing.
8.2 Survival. Any errors or omissions in computing apportionments at the Closing shall be
corrected. This paragraph shall survive the Closing.
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• 9. NOTICE
9.1 Notices. Any notice, report or demand required, permitted or desired to be given under
this Agreement, shall be in writing and shall be deemed to have been sufficiently given, delivered or
served for all purposes (a) five (5) days after the same has been mailed by postage prepaid, registered
or certified mail, return receipt requested, or (b) upon receipt, if the same has been duly deposited,
postage prepaid, for delivery the next business day with Federal Express or another reputable,
overnight courier service providing proof of delivery, in each case addressed to the respective parties
as follows:
If to SELLER:
Mr. James Hickey
Degussa Engineered Carbons, LP
379 Interpace Parkway
P.O. Box 677
Parsippany, NJ 07054 -0677
With a copy, which shall not constitute notice, to:
Degussa Corporation Legal Department
379 Interpace Parkway
P.O. Box 677
Parsippany, NJ 07054 -0677
If to PURCHASER:
Mr. Gary Jackson
City of Baytown
2401 Market Street,
Baytown, Texas 77520
With a copy, which shall not constitute notice, to:
Mr. Ignacio Ramirez, Sr.
City of Baytown
P.O. Box 424
Baytown, Texas 77022
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® By written notice to the other party, a party may designate a new address to which notices,
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reports or demands to it shall thereafter be given, delivered or served.
10. FAILURE TO CONVEY
10.1 Failure to Convey. In the event Seller is unable to convey the Premises to Purchaser (or
to cause the same to be conveyed to Purchaser) in accordance with the terms of this Agreement, or if
any representation or warranty of Seller herein is inaccurate or untrue and same is discovered prior to
the Closing, or if Seller is unable to perform the covenants herein to be performed by Seller, or if any
conditions to be satisfied hereunder by Seller are not satisfied, then Purchaser shall have, along with
all other available remedies, the option of either (a) terminating this Agreement, in which event
neither party shall have any further rights or obligations hereunder, and Purchaser shall be deemed to
have waived any claim,. at law or in equity, either against Seller or against any person, known or
unknown, disclosed or undisclosed, or (b) accepting such title as Seller shall be able to convey, with
an equitable abatement or reduction of the Purchase Price.
11. TERMINATION OF AGREEMENT
11.1 Termination by Purchaser. In the event this Agreement is terminated by Purchaser
pursuant to any right specifically granted to it under the terms of this Agreement (and not as a result
of Purchaser's default hereunder), Purchaser shall have no rights or remedies against Seller
whatsoever, and, except as otherwise expressly provided in this Agreement, this Agreement shall be
deemed null and void and no party hereto shall have any obligations to or rights against the other
hereunder. Notwithstanding anything to the contrary contained in this Agreement, Seller, its
successors, officers, directors, employees, agents and assigns, shall not have any personal liability
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• hereunder, and Purchaser hereby releases the aforesaid persons and entities from all claims, at law or
in equity, arising out of or relating to this Agreement or the Premises (including, without limitation,
any Environmental Condition), or arising out of or relating to any breach of any covenant, warranty
or representation contained in this Agreement.
12. RIGHTS OF FIRST REFUSAL
12.1 Processed Water. Purchaser hereby grants Seller the right of first refusal with respect to
the purchase of up to one million gallons per day of the water discharged from the wastewater
treatment plant ( "Processed Water ") that Purchaser proposes to construct on the Premises. Until
Seller has contracted to obtain one million gallons per day of Processed Water from the Purchaser,
before accepting any bona fide offer for Processed Water, Purchaser shall present such offer to Seller
in writing. Seller shall have 45 days from receipt of such offer to notify Purchaser in writing whether
it will offer to purchase Processed Water on the same terms and conditions set forth in the Offer.
Purchaser agrees to accept such an offer from the Seller and sell Processed Water to Seller on such
terms and conditions as set forth in the original offer.
12.2 Premises. Purchaser hereby grants Seller the right of first refusal with respect to the
purchase of the Premises, in the event that the Purchaser elects to sell the Premises at any time after
it commences operation of a wastewater treatment facility. Before accepting any bona fide offer for
the Premises, Purchaser shall present such bona fide offer to Seller in writing. Seller shall have 45
days from receipt of such offer to notify Purchaser in writing whether it will offer to purchase
Premises on the same terms and conditions set forth in the original offer. Purchaser agrees to accept
such an offer from Seller and will sell the Premises on such terms and conditions as set forth in the
original offer.
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0 12.3 Survival. This paragraph 12 shall survive the Closing.
13. MISCELLANEOUS
13.1 Waivers. A waiver of any tern or condition of this Agreement must be in writing and
signed by the party against whom such waiver is sought to be enforced. No waiver of any breach
hereunder shall be deemed a waiver of any other breach hereunder (including, without limitation, any
subsequent breach hereunder).
13.2 Amendments. This Agreement may not be altered, amended, changed, waived,
terminated or modified in any respect or particular unless the alteration, amendment, change, waiver,
termination or modification is in writing and signed by the party against whom it is sought to be
enforced.
13.3 Governing Law. This Agreement shall be governed by, and interpreted and enforced in
accordance with, the law of the State of Texas, Harris County, exclusive of its choice of law rules.
13.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and to their respective heirs, executors, administrators, successors and assigns.
Purchaser may not assign this Agreement, any right to any payments made hereunder, any right to be
named as transferee in the Deed contemplated by this Agreement or any other rights or obligations
under this Agreement without Seller's prior written consent, which consent may be withheld by
Seller in its sole discretion.
13.5 Entire Agreement. All understandings and agreements heretofore made between the
parties hereto are merged in this Agreement which alone fully and completely expresses their
agreement, and the same is entered into after full investigation, neither party relying upon any
statement or representation made by the other not embodied in this Agreement. This Agreement
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0 shall be given a fair and reasonable construction in accordance with the intentions of the parties
hereto, and without regard to, or the aid of, canons requiring construction against the grantor, Seller
or the party that drafted the Agreement.
13.6 Seller's Obligations. The acceptance of the Deed to the Premises by Purchaser shall be
deemed to be a full performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to the provisions of this Agreement except those, if any, that survive
the Closing.
13.7 Effectiveness of Agreement. Submission by Seller of this Agreement for execution by
Purchaser shall neither confer any rights nor impose any obligations on either party hereto unless and
until both Seller and Purchaser shall have executed this Agreement and duplicate originals thereof
shall have been delivered to Seller and Purchaser.
13.8 No Representations or Warranties. Purchaser expressly acknowledges that, except as
may be otherwise expressly set forth in this Agreement, neither Seller nor any party acting on Seller's
behalf has made or has been authorized to make any covenants, representations, warranties or
statements with respect to the subject matter of this Agreement or has held out any inducements to
Purchaser to execute this Agreement.
13.9 Headings. The headings in this Agreement are included for convenience of reference
only, shall not constitute a part of this Agreement for any other purpose and shall not be used as an
aid in construing any of the terms, conditions or other provisions of this Agreement.
13.10 Counterparts. This Agreement maybe executed in several counterparts which, when
taken together, shall constitute one and the same instrument.
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® IN WITNESS WIHEREOF, the parties hereto have duly executed this Agreement the day and
!� year first above written.
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Date
ATTEST:
SELLER:
DEGUSSA i
By:
Name- -� c
Date:
PURCHASER:
CITY OF BAYTOWN
By
Name:
Title:
Date:
By-,
Name:
Title:
Date:
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Schedule A - Premises
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06112/01 12:12 PM
METES AND BOUNDS
DESCRIPTION
Description of 44.6151 acres of land out of a called 215.4321 acre tract conveyed by deed dated
July 6, 1995 from J.M. Huber Corporation to Engineered Carbons, Inc. as recorded under Harris
County Clerks File Number 8470540, and being situated in the WM. Bloodgood League, Abstract
Number 4, Harris County, Texas; (note: bearings are based on the west line of said tract 3, and
tract 4, of said 215.431 acres)
COMMENCING at a 518 inch iron rod with cap found at the intersection of the north right -of -way
line of Needle Point Road (Based on a 60 foot width) with the southeasterly line of the Southern
Pacific Railroad (Volume 525, Page 236 Harris County Deed Records) (100' right -of -way);
THENCE South 280 05' 00" West, passing at a distance of 75.47 feet the most northerly
northwest corner of said 215.4321 acres and being in the south line of said Needle Point Road,
and continuing along the southeasterly line of the Southern Pacific Railroad (Volume 390, Page
431 Harris County Deed Records) (100' right -of -way), for a total distance of 1,358.89 feet to a 518
inch iron rod with cap set for the northeast corner and PLACE OF BEGINNING of the herein
described tract;
THENCE South 090 32' 50" East, for a distance of 2,679.03 feet to a point for corner on the top
bank of Cedar Bayou;
THENCE along the meanders of Cedar Bayou, the following calls;
North 76° 21'28" West, for a distance of 147.14 feet to a point,
North 790 55' 54" West, for a distance of 53.51 feet to a point,
North 62° 31' 42" West, for a distance of 130.76 feet to a point,
North 83° 27' 28" West, for a distance of 61.60 feet to a point,
North 75° 32' 07" West, for a distance of 73.80 feet to a point,
North 830 33' 42" West, for a distance of 53.59 feet to a point,
North 790 48' 19" West, for a distance of 55.82 feet to a point,
North 760 08'43" West, for a distance of 90.05 feet to a point.
North 890 03'43" West, for a distance of 61.07 feet to a point,
North 850 03' 31" West, for a distance of 31.27 feet to a point,
North 85" 55' 54" West, for a distance of 103.16 feet to a point,
South 75° 54'31" West, for a distance of 37.77 feet to a point,
South 650 13' 57" West, for a distance of 55.26 feet to a point,
South 470 43' 32" West, for a distance of 47.12 feet to a point,
South 460 40'29" West, for a distance of 61.72 feet to a point,
South 211 27' 43" West, for a distance of 38.35 feet to a point.
South 450 34' 36" West, for a distance of 49.80 feet to a point,
South 53° 09' 13" West, for a distance of 10.12 feet to a point,
South 280 00' 16" West, for a distance of 39.23 feet to a point,
South 32° 48' 21" West, for a distance of 39.50 feet to a point in the west line of said
215.4321 acres;
THENCE North 09° 32' 50" West, along the west line of said 215.4321 acres, passing at a
• distance of 70.45 feet, a 518 inch iron rod found for reference and continuing in all for a total
distance of 1146.66 feet to the a 518 inch iron rod with cap found for the most westerly northwest
corner of said 215.4351 acres, same being in the southeasterly line of a 100 foot Southern Pacific
Railroad fee as recorded under Volume 390, Page 431 of the Deed Records of Harris County;
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n the northwester) line of said 215.4321 acres together
THENCE North 28 05' 00" East, along y
with the southeasterly line of said Southern Pacific Railroad fee, for a distance of 1,795.05 feet to
the PLACE OF BEGINNING of herein described tract of land and containing within these calls
44.6151 acres or 1,943,434 square feet of land;
WITNESS MY HAND AND SEAL THIS THE 12th DAY OF JUN-E, 2001 OF.T1�
..••SCOT LOWE•••••
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Scot Low
Regist ed Professional Land Surveyor
Texa,f Registration No. 5007
Note: Description prepared in conjunction with
99065.DWG — dated July 26, 1999.
Revised June 12, 2001.
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® METES AND BOUNDS
DESCRIPTION
60 FOOT RIGHT -OF -WAY
Description of a 60 foot wide right -of -way from Needlepoint Road to a 50 foot wide Houston
Lighting and Power Fee Strip as recorded under Volume 3527, Page 733 of the Deed Records of
Harris County Texas. Said 60 foot wide right -of -way being - situated in a called 43.1651 acres
(Tract 4) as conveyed by deed dated July 6, 1995 from J.M. Huber Corporation to Engineered
Carbons, Inc. as recorded under Harris County Clerks File Number R470540 and being situated
in the WM. Bloodgood League, Abstract Number 4, Hams County, Texas; (note: bearings are
based on the west line of said 43.1651 acres)
BEGINNING at a 518 inch iron rod found in the southerly right -of -way line of Needle Point Road
(Based on a 60 foot width) and marking the northwest corner of a said 43.1651 acres;
THENCE North 80° 39' 44" East, along the southerly right -of -way line of said Needle Point Road,
for a distance of 60.00 feet to a 518 inch iron rod set for comer;
THENCE South 090 32' 50" East, for a distance of 2,133.65 feet to a 518 inch iron rod set in the
northwesterly line of said 50 foot wide Houston Lighting and Power Fee Strip;
THENCE South 280 05' 00" W, along the northwesterly line of said 50' wide Houston Lighting
and Power Fee Strip, for a distance of 98.26 feet to a 5/8 inch iron rod with cap found marking the
most southerly corner of said 43.1651 acres;
THENCE North 090 32' 50" West, along the westerly line of said 43.1651 acres, for a distance of
2,211.08 feet (called 2,211.68 feet) to the PLACE OF BEGINNING of herein described tract of
land and containing within these calls 2.9926 acres or 130,360 square feet of land.
WITNESS MY HAND AND SEAL THIS THE 25rd DAY OF SEPTEMBER, 1999
Scot Loyd /1
Regist ed Professional Land Surveyor
Texas Registration No. 5007
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•
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Schedule B - Deed
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SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF HARRIS §
Grantor, DEGUSSA ENGINEERED CARBONS, LP, a Delaware limited partnership,
qualified to do business in the State of Texas and having an address of 1215 Main Street, Port
Neches, Texas 77651, for ONE HUNDRED THIRTY -FIVE THOUSAND AND NO /100
DOLLARS ($135,000.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, GRANTS AND CONVEYS to the CITY OF BAYTOWN, a municipal
corporation located in Harris and Chambers County, Texas, and having an address of 2401
Market Street, Baytown, TX 77520, as Grantee, that certain tract or parcel of real property
located in Harris County, Texas, described in Exhibit "A," which is attached hereto and
incorporated herein for all intents and purposes (the "Premises ").
IT IS EXPRESSLY UNDERSTOOD AND AGREED that this conveyance shall be
effective for only so long as the property described above is used as a wastewater t.reatrnent
facility or use for other municipal purposes. If the property ceases to be used for a wastewater
treati:nent facility or for other murUcipal purposes, all rights, title, and interest conveyed by this
instrument shall automatically revert to and vest in Grantor, Grantor's heirs, successors, and
assigns, without the necessity of any further act on the part of or on behalf of the Grantor, it
being the intent of Grantor to convey a determinable estate to the Grantee.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT this conveyance is also
subject to the following restrictions and covenants, which shall be binding upon any subsequent
purchaser of the Premises:
1. The Premises is being sold and conveyed "As Is," "Where Is" and "With All
Faults."
2. Grantee assumes the risk that environmental conditions may exist on the Premises
and hereby releases Grantor, its predecessors, successors and assigns from any
and all damages, losses, costs, claims, actions, proceedings, obligations, fines,
expenses or liabilities (whether absolute, accrued, conditional or otherwise),
including, but not limited to, out -of- pocket expenses and reasonable attorneys'
and accountants' fees and expenses which might arise out of or in connection with
Special Warranty Deed, Page 1
the physical or environmental condition of the Premises. As used herein, the term
"environmental condition" shall mean any condition, fact, event or circumstance
in any way related to the presence of chemicals, contaminants or pollutants of any
description on or near the Premises, or on, under or upon to the soil, ground
water, surface water of the Premises which could or does result in any losses,
including, without limitation, any such condition resulting from the past, present
or future operations conducted on the Premises.
3. Grantee acknowledges that it is familiar with the operations and emissions from
the Grantor's carbon black facility that is adjacent to the Premises and hereby
agrees to release and waive any claim against Grantor, its successors and assigns,
that may arise in the future as a result of the migration of permitted plant
emissions from such facility, as it may be expanded or changed from time to time,
onto the Premises.
TO HAVE AND TO HOLD the property described, together with all the rights and
appurtenances lawfully accompanying it, by the Grantee and the Grantee's successors and
assigns forever. Grantor binds itself and its successors and assigns to warrant and forever defend
the property against every person lawfully claiming or to claim all or any part of the property by,
through, or under the Grantor but not otherwise; provided, however, this conveyance is made
subject to all easements, exceptions, covenants, conditions, restrictions, reservations, and rights
appearing of record.
DEGUSSA ENGINEERED
CARBONS, LP
BY:
Signature
Printed Name
Title
STATE OF §
COUNTY OF §
Before me, the undersigned notary public, on this day
personally appeared , as the of
DEGUSSA ENGINEERED CARBONS, LP, the owner of the above - referenced property,
Special Warranty Deed, Page 2
® known to me;
proved to me on the oath of ; or
proved to me through his current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(Check one)
•
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this _ day of ,
2003.
GRANTORS' ADDRESS:
DEGUSSA ENGINEERED CARBONS, LP
ATTN: James Hickey
379 Interpace Parkway
P.O. Box 677
Parsippany, NJ 07054 -0677
RETURN TO GRANTEE:
CITY OF BAYTOWN
OFFICE OF THE CLERK
P.O. BOX 424
BAYTOWN, TEXAS 77522 -0424
F: \Karcn\Files\Contracts \Wastewater Plant\Special Warranty Deed Final.doc
Special Warran Deed, Page 3
Notary Public in and for the State of
Texas
My commission expires:
•
None Identified
•
Schedule C - Matters Affecting Title
ORDINANCE NO. 9548
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
ACCEPTING THE BID OF BAYTOWN FAMILY YMCA FOR THE ANNUAL
LIFEGUARD SERVICES CONTRACT AND AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN, THE SUM OF SIXTY THOUSAND SEVEN HUNDRED SIX AND
20/100 DOLLARS ($60,706.20); MAKING OTHER PROVISIONS RELATED THERETO;
AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the City Council of the City of Baytown did authorize the Purchasing Department for the
City of Baytown to advertise for bids for the Annual Lifeguard Services Contract to be received April 3, 2003;
and
WHEREAS, notice to bidders as to the time and place, when and where the contract would be let was
published pursuant to the provisions of Chapter 252 of the Texas Local Government Code; and
WHEREAS, all bids were opened and publicly read at City Hall at 2:00 p.m., Thursday, April 3, 2003,
as per published notice to bidders; NOW THEREFORE
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 accepts the bid of Baytown
Family YMCA for the Annual Lifeguard Services Contract for the sum of SIXTY THOUSAND SEVEN
HUNDRED SIX AND 20/100 DOLLARS ($60,706.20) and authorizes payment thereof.
Section 2: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or
less, subject to the provision that the original contract price may not be increased by more than twenty-five
percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to
such decrease.
Section 3: 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 10"' day of April, 2003.
C. `K'
PETE C. ALFARO, Mayor
A-I
C
GA Y W. SM.fia3, City Clerk
APPROVED AS TO FORM:
0 —
NACIO RAMIREZ, SIPCity Attorney
FaleaneneWy Documents\ Council\ 02 -031 April\ AwardAnnualLifeguardServicesContract .doc
ORDINANCE NO. 9547
® ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE ISSUANCE OF CITY OF BAYTOWN, TEXAS,
WATERWORKS AND SEWER SYSTEM REVENUE IMPROVEMENT AND
REFUNDING BONDS, SERIES 2003; AUTHORIZING THE REDEMPTION
PRIOR TO MATURITY OF CERTAIN OUTSTANDING OBLIGATIONS;
AUTHORIZING THE ADVANCE REFUNDING OF CERTAIN OUTSTANDING
OBLIGATIONS AND THE EXECUTION AND DELIVERY OF AN ESCROW
AGREEMENT; AND THE SUBSCRIPTION FOR AND PURCHASE OF
CERTAIN ESCROWED SECURITIES; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
WHEREAS, the City Council of the City of Baytown, Texas (the "City ") has heretofore
issued the bonds described in Exhibit A attached hereto (the "Refunded Bonds "); and
WHEREAS, the City desires to refund the Refunded Bonds in advance of their maturities;
and
WHEREAS, Chapter 1207, Texas Government Code, as amended, authorizes the City to
issue refunding bonds payable from taxes, without an election, for the purpose of refunding the
Refunded Bonds in advance of their maturities, and to accomplish such refunding by depositing
directly with a paying agent for the Refunded Bonds (or other qualified escrow agent), the proceeds
of such refunding bonds, together with other available funds, in an amount sufficient to provide for
the payment or redemption of the Refunded Bonds, and provides that such deposit shall constitute
the making of firm banking and financial arrangements for the discharge and final payment or
redemption of the Refunded Bonds; and
WHEREAS, the City desires to authorize the execution of an escrow agreement and provide
for the deposit of proceeds of the refunding bonds herein authorized, together with other funds, to
pay the Refunded Bonds; and
WHEREAS, upon the issuance of the refunding bonds herein authorized and the deposit of
funds referred to above, the Refunded Bonds shall no longer be regarded as being outstanding,
except for the purpose of being paid pursuant to such deposit, and the pledges, liens, trusts and all
other covenants, provisions, terms and conditions of the ordinances authorizing the issuance of the
Refunded Bonds shall be, with respect to the Refunded Bonds, discharged, terminated and defeased;
NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
•
ARTICLE I
RECITALS: CONSIDERATION
It is hereby found and determined that the matters and facts set out in the preamble to this
Ordinance are true and correct.
It is hereby found and determined that the refunding contemplated in this Ordinance will
benefit the City by providing a total savings of $ and a present value savings of
$ in the debt service payable by the City, that such benefit is sufficient consideration for
the refunding of the Refunded Bonds, and that the issuance of the refunding bonds is in the best
interests of the City.
ARTICLE U
DEFIhIITIONS AND INTERPRETATIONS
Section 2.1: Definitions. Throughout this Ordinance the following terms and expressions
as used herein shall have the meanings set forth below:
"Acts" mean Chapters 1207 and 1502, Texas Government Code, as amended.
"Additional Parity Bonds" mean the additional parity revenue bonds permitted to be issued
by the City pursuant to Article VI of this Ordinance.
"Blanket Issuer Letter of Representations" means the Blanket Issuer Letter of Representations
between the City, the Registrar and DTC.
"Bond" or 'Bonds" mean the City of Baytown, Texas, Waterworks and Sewer System
Revenue Improvement and Refunding Bonds, Series 2003, authorized by this Ordinance.
"Bond Purchase Agreement" means the agreement between the City and the Underwriters
described in Section 22 of this Ordinance.
"Business Day" means any day which is not a Saturday, Sunday, a day on which banking
institutions in Dallas, Texas, are authorized by law or executive order to close, or a legal holiday.
"City" means the City of Baytown, Texas, and where appropriate, the City Council thereof
and any successor to the City as owner of the System.
"Closing Date" means the date of the initial delivery of and payment for the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended.
® "Comptroller" means the Comptroller of Public Accounts of the State of Texas.
-2-
"DTC" means The Depository Trust Company of New York, New York, or any successor
securities depository.
"DTC Participant" means brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations on whose behalf DTC was created to-hold securities to facilitate the
clearance and settlement of securities transactions among DTC Participants.
"Escrow Agent" means JPMorgan Chase Bank.
"Escrow Agreement" means the agreement between the City and the Escrow Agent relating to
the escrow of funds to pay the Refunded Bonds.
"Gross Revenues" means all revenues, income and receipts of every nature derived or
received by the City from the operation and ownership of the System and the interest income from
the investment or deposit of money in the Revenue Fund, the Interest and Sinking Fund, and the
Reserve Fund.
"Initial Bond" means the Initial Bond authorized by Section 3.4(d).
"Interest Payment Date ", when used in connection with any Bond, means August 1, 2003, and
each February 1 and August 1 thereafter until maturity or prior redemption.
"MSRB" means the Municipal Securities Rulemaking Board.
"Net Revenues" means all Gross Revenues remaining after deducting the Maintenance and
Operation Expenses.
"NRMSIR" means each person whom the SEC or its staff has determined to be a nationally
recognized municipal securities information repository within the meaning of the Rule from time to
time.
"Ordinance" means this bond ordinance and all amendments hereof and supplements hereto.
"Outstanding Bonds" means the City's Waterworks and Sewer System Revenue Bonds, Series
1991, Waterworks and Sewer System Revenue Bonds, Series 1992, Waterworks and Sewer System
Revenue Bonds, Series 1993, Waterworks and Sewer System Revenue Bonds, Series 1994,
Waterworks and Sewer System Revenue Bonds, Series 1995, and Waterworks and Sewer System
Revenue Refunding Bonds, Series 1998.
"Owner" means any person who shall be the registered owner of any outstanding Bond.
"Parity Bonds" mean the Bonds, the Outstanding Bonds, and each series of Additional Parity
Bonds from time to time hereafter issued, but only to the extent such Parity Bonds remain
outstanding.
-3-
s
"Record Date" means the fifteenth day of the month next preceding each Interest Payment
Date.
"Refunded Bonds" mean those bonds described on Exhibit A attached hereto.
"Register" means the books of registration kept by the Registrar in which are maintained the
names and addresses of, and the principal amounts of Bonds registered to, each Owner.
"Registrar" means JPMorgan Chase Bank, and its successors in that capacity.
"Report" means the report of Grant Thornton LLP, verifying the accuracy of certain
mathematical computations relating to the Bonds and the Refunded Bonds.
"Reserve Fund Requirement" means, as of any particular date, the average annual principal
and interest requirements on all Parity Bonds then outstanding.
"Rule" means SEC Rule 15c2 -12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means the Municipal Advisory Council of Texas, which has been designated by the
State of Texas as, and determined by the SEC staff to be, a state information depository within the
meaning of the Rule.
"System" means all properties, facilities, improvements, equipment, interests, and rights
constituting the waterworks and sanitary sewer system of the City, including all future extensions,
replacements, betterments, additions, and improvements to the System.
"Underwriters" m ean M organ S tanley, P rudential S ecurities Incorporated, CIBC World
Markets Corp. and Legg Mason Wood Walker, Inc.
Section 2.2: Interpretations. All terms defined herein and all pronouns used in this
Ordinance shall be deemed to apply equally to singular and plural and to all genders. The titles and
headings of the articles and sections of this Ordinance have been inserted for convenience of
reference only and are not to be considered a part hereof and shall not in any way modify or restrict
any of the terms or provisions hereof. This Ordinance and all the terms and provisions hereof shall
be liberally construed to effectuate the purposes set forth herein and to sustain the validity of the
Bonds and the validity of the lien on and pledge of the Net Revenues to secure the payment of the
Bonds, the Outstanding Bonds, and the Additional Parity Bonds.
ME
® ARTICLE III
TERMS OF THE BONDS
Section 3.1: Authorization and Authorized Amount. The Bonds shall be issued, pursuant
to the Act, in fully registered form in the aggregate principal amount of $ for the purpose
of financing improvements to the System and for the purpose of refunding the Refunded Bonds.
Section 3.2: Designation, Date, and Interest Payment Dates, The Bonds shall be
designated as "City of Baytown, Texas, Waterworks and Sewer System Revenue Improvement and
Refunding Bonds, Series 2003," and shall be dated May 1, 2003. The Bonds shall bear interest from
the later of May 1, 2003, or the most recent Interest Payment Date to which interest has been paid or
duly provided for, calculated on the basis of a 360 day year of twelve 30 day months, payable on
August 1, 2003, and semiannually thereafter on February 1 and August 1 of each year until maturity
or prior redemption.
Section 3.3: Initial Bonds; Numbers and Denomination. The Bonds shall be issued in the
principal amounts and bearing interest at the rates set forth in the following schedule, and maybe
transferred and exchanged as set out in this Ordinance. The Bonds shall mature on February 1 in
each of the years and in the amounts set out in such schedule. The Initial Bond shall be numbered 11
and all other Bonds shall be numbered in sequence beginning with R -1. Bonds delivered on transfer
of or in exchange for other Bonds shall be numbered in order of their authentication by the Registrar,
shall be in the denomination of $5,000 or integral multiples thereof, and shall mature on the same
date and bear interest at the same rate as the Bond or Bonds in lieu of which they are delivered.
-5-
Principal Interest
Year
Amount Rate
2004
$ %
2005
%
2006
%
2007
%
2008
%
2009
%
2010
%
2011
%
2012
%
2013
%
2014
%
2015
%
2016
%
2017
%
2018
%
2019
%
2020
%
-5-
2021
%
2022
%
2023
%
•
Section 3.4: Execution and Registration of Bonds. (a) The Bonds shall be signed on
behalf of the City by the Mayor and countersigned by the City Clerk, by their manual, lithographed,
or facsimile signatures, and the official seal of the City shall be impressed or placed in facsimile
thereon. Such facsimile signatures on the Bonds shall have the same effect as if each of the Bonds
had been signed manually and in person by each of said officers, and such facsimile seal on the
Bonds shall have the same effect as if the official seal of the City had been manually impressed upon
each of the Bonds.
(b) If any officer of the City whose manual or facsimile signature shall appear on the
Bonds shall cease to be such officer before the authentication of such Bonds or before the delivery of
such Bonds, such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes as if such officer had remained in such office.
(c) Except as provided below, no Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit of this Ordinance unless and until there appears thereon the
Registrar's Authentication Certificate substantially in the form provided herein, duly authenticated by
manual execution by an officer or duly authorized signatory of the Registrar. In lieu of the executed
Registrar's Authentication Certificate described above, the Initial Bond delivered at the Closing Date
shall have attached hereto the Comptroller's Registration Certificate substantially in the form
provided herein, manually executed by the Comptroller of Public Accounts of the State of Texas, or
by his duly authorized agent, which certificate shall be evidence that the Initial Bond has been duly
approved by the Attorney General of the State of Texas and that it is a valid and binding obligation
of the City, and has been registered by the Comptroller of Public Accounts of the State of Texas.
(d) On the Closing Date, the Initial Bond, being a single bond representing the entire
principal amount of the Bonds, payable in stated installments to the Underwriters or its designee,
executed by manual or facsimile signature of the Mayor and City Clerk of the City, approved by the
Attorney General, and registered and manually signed by the Comptroller of Public Accounts, shall
be delivered to the Underwriters or its designee. Upon payment for the Initial Bond, the Registrar
shall cancel the Initial Bond and deliver definitive bonds to DTC.
Section 3.5: Payment of Principal and Interest. The Registrar is hereby appointed as the
paying agent and registrar for the Bonds. The principal of the Bonds shall be payable, without
exchange or collection charges, in any coin or currency of the United States of America which on the
date of payment is legal tender for the payment of debts due the United States of America, upon their
presentation and surrender as they respectively become due and payable at the principal payment
office of the Registrar in Dallas, Texas. The interest on each Bond shall be payable on each interest
Payment Date, by check mailed by the Registrar on or before the Interest Payment Date to the Owner
of record as of the Record Date, to the address of such Owner as shown on the Register.
!S1
® If the date for payment of the principal of or interest on any Bond is not a Business Day, then
the date for such payment shall be the next succeeding Business Day with the same force and effect
as if made on the date payment was originally due.
Section 3.6: Successor Registrars. The City covenants that at all times while any Bonds
are outstanding it will provide a commercial bank or trust company, organized under the laws of the
United States or any state, authorized under such laws to exercise trust powers, and subject to
supervision or examination by federal or state authority, and authorized to serve as and perform the
duties and services of Registrar for the Bonds. The City reserves the right to change the Registrar for
the Bonds on not less than 30 days written notice to the Registrar, so long as any such notice is
effective not less than 60 days prior to the next succeeding principal or interest payment date on the
Bonds. Promptly upon the appointment of any successor Registrar, the previous Registrar shall
deliver the Register or copies thereof to the new Registrar, and the new Registrar shall notify each
Owner, by United States mail, first class postage prepaid, of such change and of the address of the
new Registrar. Each Registrar hereunder, by acting in that capacity, shall be deemed to have agreed
to the provisions of this Section.
Section 3.7: Special Record Date. If interest on any Bond is not paid on any Interest
Payment Date and continues unpaid for thirty (30) days thereafter, the Registrar shall establish a new
record date for the payment of such interest, to be known as a Special Record Date. The Registrar
shall establish a Special Record Date when funds to make such interest payment are received from or
on behalf of the City. Such Special Record Date shall be fifteen (15) days prior to the date fixed for
payment of such past due interest, and notice of the date of payment and the Special Record Date
shall be sent by United States mail, first class, postage prepaid, not later than five (5) days prior to
the Special Record Date, to each affected Owner of record as of the close of business on the day prior
to the mailing of such notice.
Section 3.8: Ownership; Unclaimed Principal and Interest. The City, the Registrar and any
other person may treat the person in whose name any Bond is registered as the absolute owner of
such Bond for the purpose of making and receiving payment of the principal of or interest on such
Bond, and for all other purposes, whether or not such Bond is overdue, and neither the City nor the
Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the
person deemed to be the Owner of any Bond in accordance with this Section shall be valid and
effectual and shall discharge the liability of the City and the Registrar upon such Bond to the extent
of the sums paid.
Amounts h eld b y t he Registrar w hick r epresent p rincipal o f and interest on the Bonds
remaining unclaimed by the Owner after the expiration of three years from the date such amounts
have become due and payable shall be reported and disposed of by the Registrar in accordance with
the applicable provisions of Texas law including, to the extent applicable, Title 6 of the Texas
Property Code, as amended.
Section 3.9: Book -Entry System. (a) The Initial Bond shall be registered in the name of
Morgan Stanley. Except as provided in Section 3.10 hereof, all other Bonds shall be registered in the
name of Cede & Co., as nominee of DTC.
-7-
(b) With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the
City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any
person on behalf of whom such DTC Participant holds an interest in the Bonds, except as provided in
this Ordinance. Without limiting the immediately preceding sentence, the City and the Registrar
shall have no responsibility or obligation with respect to (1) the accuracy of the records of DTC, Cede
& Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to
any DTC Participant or any other person, other than an Owner, as shown on the Register, of any
notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC
Participant or any other person, other than an Owner, as shown on the Register, of any amount with
respect to principal of, premium, if any, or interest on the Bonds. Notwithstanding any other
provision of this Ordinance to the contrary, the City and the Registrar shall be entitled to treat and
consider the person in whose name each Bond is registered in the Register as the absolute Owner of
such Bond for the purpose of payment of principal of and interest on the Bonds, for the purpose of
giving notices of redemption and other matters with respect to such Bond, for the purpose of
registering transfer with respect to such Bond, and for all other purposes whatsoever. The Registrar
shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the
respective Owners, as shown in the Register as provided in this Ordinance, or their respective
attorneys duly authorized in writing, and all such payments shall be valid and effective to fully
satisfy and discharge the City's obligations with respect to payments of principal, premium, if any,
and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner,
as shown in the Register, shall receive a Bond certificate evidencing the obligation of the City to
make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC to the Registrar
of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede
& Co., and subject to the provisions of this Ordinance with respect to interest checks being mailed to
the Owner of record as of the Record Date, the phrase "Cede & Co." in this Ordinance shall refer to
such new nominee of DTC.
Section 3.10: Successor Securities Depository; Transfer Outside Book -Entry Only System.
In the event that the City, in its sole discretion, determines that the beneficial owners of the Bonds
shall be able to obtain certificated Bonds, or in the event DTC discontinues the services described
herein, the City shall (i) appoint a successor securities depository, qualified to act as such under
Section 17(a) of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC
Participants, as identified by DTC, of the appointment of such successor securities depository and
transfer one or more separate Bonds to such successor securities depository or (ii) notify DTC and
DTC Participants, as identified by DTC, of the availability through DTC of Bonds and transfer one
or more separate Bonds to DTC Participants having Bonds credited to their DTC accounts, as
identified by DTC. In such event, the Bonds shall not longer be restricted to being registered in the
Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the
successor securities depository, or its nominee, or in whatever name or names Owners transferring or
exchanging Bonds shall designate, in accordance with the provisions of this Ordinance.
Section 3.11: Payments to Cede & Co. Notwithstanding any other provision of this
Ordinance to the contrary, so long as any Bonds are registered in the name of Cede & Co., as
nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such
In
Bonds, and all notices with respect to such Bonds, shall be made and given, respectively, in the
manner provided in the Blanket Letter of Representations.
Section 3.12: Registration, Transfer, and Exchange. So long as any Bonds remain
outstanding, the Registrar shall keep the Register at its principal payment office in Dallas, Texas,
and, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the
registration and transfer of Bonds in accordance with the terms of this Ordinance.
Each Bond shall be transferable only upon the presentation and surrender thereof at the
principal payment office of the Registrar in Dallas, Texas, duly endorsed for transfer, or
accompanied by an assignment duly executed by the registered Owner or his authorized
representative in form satisfactory to the Registrar. Upon due presentation of any Bond for transfer,
the Registrar shall authenticate and deliver in exchange therefor, within three Business Days after
such presentation, a new Bond or Bonds, registered in the name of the transferee or transferees, in
authorized denominations and of the same maturity and aggregate principal amount and bearing
interest at the same rate as the Bond or Bonds so presented.
All Bonds shall be exchangeable upon presentation and surrender thereof at the principal
payment office of the Registrar in Dallas, Texas, for a Bond or Bonds of the same maturity and
interest r ate a nd i n a ny a uthorized d enomination, i n an aggregate amount equal to the unpaid
principal amount of the Bond or Bonds presented for exchange. The Registrar shall be and is hereby
authorized to authenticate and deliver exchange Bonds in accordance with the provisions of this
Section. Each Bond delivered in accordance with this Section shall be entitled to the benefits and
security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such Bond is
delivered.
The City or the Registrar may require the Owner of any Bond to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with the transfer or
exchange of such Bond. Any fee or charge of the Registrar for such transfer or exchange shall be
paid by the City.
Section 3.13: Mutilated, Lost, or Stolen Bonds. Upon the presentation and surrender to the
Registrar of a mutilated Bond, the Registrar shall authenticate and deliver in exchange therefor a
replacement Bond of like maturity, interest rate, and principal amount, bearing a number not
contemporaneously outstanding. If any Bond is lost, apparently destroyed, or wrongfully taken, the
City, pursuant to the applicable laws of the State of Texas and in the absence of notice or knowledge
that such Bond has been acquired by a bona fide purchaser, shall authorize and the Registrar shall
authenticate and deliver a replacement Bond of like maturity, interest rate and principal amount,
bearing a number not contemporaneously outstanding.
The City or the Registrar may require the Owner of a mutilated Bond to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection therewith and any
other expenses connected therewith, including the fees and expenses of the Registrar. The City or
10 the Registrar may require the Owner of a lost, apparently destroyed or wrongfully taken Bond, before
any replacement Bond is issued, to:
ISO
® (1) furnish to the City and the Registrar satisfactory evidence of the ownership of
and the circumstances of the loss, destruction or theft of such Bond;
(2) furnish such security or indemnity as may be required by the Registrar and
the City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other
governmental charge that may be imposed; and
(4) meet any other reasonable requirements of the City and the Registrar.
If, after the delivery of such replacement Bond, a bona fide purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original Bond, the City and the
Registrar shall be entitled to recover such replacement Bond from the person to whom it was
delivered or any person taking therefrom, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the City or the Registrar in connection therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Bond has become or is
about to become due and payable, the City in its discretion may, instead of issuing a replacement
Bond, authorize the Registrar to pay such Bond.
Each replacement Bond delivered in accordance with this Section 3.12 shall be entitled to the
benefits and security of this Ordinance to the same extent as the Bond or Bonds in lieu of which such
replacement Bond is delivered.
Section 3.14: Cancellation of Bonds. All Bonds paid in accordance with this Ordinance,
and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and
delivered in accordance herewith, shall be cancelled and destroyed upon the making of proper
records regarding such payment. The Registrar shall furnish the City with appropriate certificates of
destruction of such Bonds.
Section 3.15: Optional Redemption. The Bonds are subject to optional redemption as set
forth in the Form of Bond in this Ordinance.
Principal amounts maybe redeemed only in integral multiples of $5,000. If a Bond subj ect to
redemption is in a denomination larger than $5,000, a portion of such Bond may be redeemed, but
only in integral multiples of $5,000. Upon surrender of any Bond for redemption in part, the
Registrar, in accordance with Section 3.12 hereof, shall authenticate and deliver in exchange therefor
a Bond or Bonds of like maturity and interest rate in an aggregate principal amount equal to the
unredeemed portion of the Bond so surrendered.
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Notice of any redemption identifying the Bonds to be redeemed in whole or in part shall be
given by the Registrar at least thirty days prior to the date fixed for redemption by sending written
notice by first class mail, postage prepaid, to the Owner of each Bond to be redeemed in whole or in
part at the address shown on the Register. Such notices shall state the redemption date, the
redemption price, the place at which Bonds are to be surrendered for payment and, if less than all
Bonds outstanding of a particular maturity are to be redeemed, the numbers of the Bonds or portions
thereof of such maturity to be redeemed. Any notice given as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the Owner receives such notice. By
the date fixed for redemption, due provision shall be made with the Registrar for payment of the
redemption price of the Bonds or portions thereof to be redeemed, plus accrued interest to the date
fixed for redemption. When Bonds have been called for redemption in whole or in part and due
provision has been made to redeem the same as herein provided, the Bonds or portions thereof so
redeemed shall no longer be regarded as outstanding except for the purpose of receiving payment
solely from the funds so provided for redemption, and the rights of the Owners to collect interest
which would otherwise accrue after the redemption date on any Bond or portion thereof called for
redemption shall terminate on the date fixed for redemption.
ARTICLE IV
FORM OF BONDS
Section 4.1: Forms. The form of the Bonds, including the form of Registration Certificate
of the Comptroller, which shall be attached or affixed to the Bonds initially issued, the form of the
Registrar's Authentication Certificate, the form of Assignment, and the form of Statement of
Insurance, shall be, respectively, substantially as follows, with such additions, deletions and
variations as may be necessary or desirable and not prohibited by this Ordinance
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•
(a) Form of Bond.
REGISTERED
NUMBER
INTEREST RATE:
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTIES OF HARRIS AND CHAMBERS
REGISTERED
DENOMINATION
CITY OF BAYTOWN, TEXAS
WATERWORKS AND SEWER SYSTEM REVENUE
fWROVEMENT AND REFUNDING BOND
SERIES 2003
MATURITY DATE: ISSUE DATE:
May 1, 2003
REGISTERED OWNER:
PRINCIPAL AMOUNT:
14191.1m
DOLLARS
The C ity o f B aytown, T exas ( the "C ity ") p romises t o p ay, but solely from certain Net
Revenues, as described herein, to the registered owner identified above, or registered assigns, on the
maturity date specified above, upon presentation and surrender of this Bond to JPMorgan Chase
Bank (the "Registrar "), at its principal payment office in Dallas, Texas, the principal amount
identified above, payable in any coin or currency of the United States of America which on the date
of payment is legal tender for the payment of debts due the United States of America, and to pay,
solely from such Net Revenues, interest thereon at the rate shown above, calculated on the basis of a
360 day year of twelve 30 day months, from the later of May 1, 2003, or the most recent interest
payment date to which interest has been paid or duly provided for. Interest on this Bond is payable
by check on August 1 and February 1, beginning on August 1, 2003, mailed to the registered owner
of record as of the fifteenth day of the month next preceding each interest payment date.
THIS BOND is one of a duly authorized issue of Bonds, aggregating $ (the
"Bonds "), issued for the purposes of improving the City's water and sewer system and refunding a
portion of the City's outstanding waterworks and sewer system revenue bonds, pursuant to an
ordinance adopted by the City Council (the "Ordinance "), which Ordinance is of record in the City's
official minutes.
THE CITY RESERVES THE RIGHT to redeem Bonds maturing on and after February 1,
2014, prior to their scheduled maturities, in whole or from time to time in part, in integral multiples
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• of $5,000, on February 1, 2013, or any date thereafter at par plus accrued interest on the principal
amounts called for redemption to the date fixed for redemption. Reference is made to the Ordinance
for complete details concerning the manner of redeeming the Bonds.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior to the date
fixed for redemption by first class mail, addressed to the registered owners of each Bond to be
redeemed in whole or in part at the address shown on the books of registration kept by the Registrar.
When Bonds or portions thereof have been called for redemption, and due provision has been made
to redeem the same, the amounts so redeemed shall be payable solely from the funds provided for
redemption, and interest which would otherwise accrue on the amounts called for redemption shall
terminate on the date fixed for redemption.
THIS BOND AND THE SERIES OF WHICH IT IS A PART are special obligations of the
City that, together with the City's outstanding waterworks and sewer system revenue bonds, are
payable from and are equally and ratably secured by a first lien on the revenues of the City's
waterworks and sewer system remaining after deduction of the operation and maintenance expenses
of that system (the "Net Revenues "), as defined and provided in the Ordinance, which Net Revenues
are required to be set aside and pledged to the payment of the Bonds, the outstanding bonds, and all
additional bonds issued on a parity therewith, in the Interest and Sinking Fund and the Reserve Fund
maintained for the payment of all such Bonds, all as more fully described and provided for in the
Ordinance. This Bond and the series of which it is a part, together with the interest thereon, are
payable solely from such Net Revenues and do not constitute an indebtedness or general obligation
of the City. The owner hereof shall never have the right to demand payment of this obligation out of
any funds raised or to be raised by taxation.
THE CITY HAS RESERVED THE RIGHT to issue additional parity revenue bonds, subject
to the restrictions contained in the Ordinance, which may be equally and ratably payable from, and
secured by a first lien on and pledge of, the aforesaid Net Revenues in the same manner and to the
same extent as this Bond and the series of which it is a part.
THIS BOND IS TRANSFERABLE only upon presentation and surrender at the principal
payment office of the Registrar in Dallas, Texas, duly endorsed for transfer or accompanied by an
assignment duly executed by the registered owner or his authorized representative, subject to the
terms and conditions of the Ordinance.
THE BOND IS EXCHANGEABLE at the principal payment office of the Registrar in Dallas,
Texas, for bonds in the principal amount of $5,000 or any integral multiple thereof, subject to the
terms and conditions of the Ordinance.
THIS BOND shall not be valid or obligatory for any purpose or be entitled to any benefit
under the Ordinance unless this Bond is either (i) registered by the Comptroller of Public Accounts
of the State of Texas by registration certificate attached or affixed hereto or (ii) authenticated by the
Registrar by due execution of the authentication certificate endorsed hereon.
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• THE REGISTERED OWNER of this Bond, by acceptance hereof, acknowledges and agrees
to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally qualified
registrar for the Bonds and will cause notice of any c hange o f registrar to b e m ailed t o e ach
registered owner.
IT IS HEREBY DECLARED AND REPRESENTED that this Bond has been duly and
validly issued and delivered; that all acts, conditions, and things required or proper to be performed,
exist, and be done precedent to or in the issuance and delivery of this Bond have been performed,
exist and have been done in accordance with law; that the Bonds do not exceed any statutory
limitation; and that provision has been made for the payment of the principal of and interest on this
Bond and all of the Bonds by the creation of the aforesaid lien on and pledge of the Net Revenues.
IN WITNESS WHEREOF, this Bond has been signed with the manual or facsimile signature
of the Mayor and countersigned with the manual or facsimile signature of the City Clerk, and the
official seal of the City has been duly impressed, or placed in facsimile, on this Bond.
(AUTHENTICATION (SEAL) CITY OF BAYTOWN, TEXAS
CERTIFICATE)
/� C
Mayor
City Clerk
(b) Form of Registration Certificate.
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this Bond has been examined, certified as to validity, and approved by
the Attorney General of the State of Texas, and that this Bond has been registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS MY SIGNATURE AND SEAL this
(SEAL)
•
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Comptroller of Public Accounts
of the State of Texas
® (c) Form of Authentication Certificate.
AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been delivered pursuant to the Bond
Ordinance described in the text of this Bond.
JPMorgan Chase Bank
As Paying Agent/Registrar
Authorized Signature
Date of Authentication
(d) Form of Assignment
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and transfers unto
(Please print or type name, address, and zip code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: Signature must be guaranteed
by a member firm of the New York Stock
Exchange or a commercial bank or trust
company.
(e) Form of Statement of Insurance.
Registered Owner
NOTICE: The signature above must
correspond to the name of the registered
owner as shown on the face of this Bond in
every particular, without any alteration,
enlargement or change whatsoever.
9 [TO COME]
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® (f) The Initial Bond shall be in the form set forth in paragraphs (a), (b), (d) and (e) of this
Section, except for the following alterations:
(i) immediately under the name of the Bond, the headings
"INTEREST RATE" and "MATURITY DATE" shall both be
completed with the words "As Shown Below" and the word "CUSIP"
deleted;
(ii) in the first paragraph of the Bond, the words "on the maturity
date specified above" and "at the rate shown above" shall be deleted
and the following shall be inserted at the end of the first sentence "...,
with such principal to be paid in installments on February 1 in each of
the years and in the principal amounts identified in the following
schedule and with such installments bearing interest at the per annum
rates set forth in the following schedule:
[Information to be inserted from schedule in Section 3.3]
(iii) the Initial Bond shall be numbered I -1.
Section 4.2: CUSIP Numbers; Bond Insurance. CUSIP Numbers may be printed on the
Bonds, but errors or omissions in the printing of such opinion or such numbers shall have no effect
on the validity of the Bonds.
The purchase of and payment of the premium for municipal bond insurance by the City, in
accordance with the terms of a commitment for such insurance presented to and hereby approved by
the City Council is hereby authorized. All officials and representatives of the City are authorized and
directed to execute such documents and to do any and all things necessary or desirable to obtain such
insurance, and the printing on the Bonds of an appropriate legend regarding such insurance is hereby
approved.
ARTICLE V
SECURITY AND SOURCE OF
PAYMENT FOR ALL PARITY BONDS
Section 5.1: Pledge and Source of Payment. The City hereby covenants and agrees that all
Gross Revenues of the System shall be deposited and paid into the special funds heretofore
established, and shall be applied in the manner set out herein, to provide for the payment of all
Maintenance and Operation Expenses and to provide for the payment of principal, interest and any
redemption premium of the Parity Bonds and all expenses of paying same. The Parity Bonds shall
constitute special obligations of the City that shall be payable solely from, and shall be equally and
ratably secured by a first lien on, the Net Revenues, as collected and received by the City, from the
• operation and ownership of the System, which Net Revenues shall, in the manner herein provided, be
set aside for and pledged to the payment of the Parity Bonds in the Interest and Sinking Fund and
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is
Reserve Fund as hereinafter provided, and the Parity Bonds shall be in all respects on a parity with
and of equal dignity with one another. The owners of the Parity Bonds shall never have the right to
demand payment out of any funds raised or to be raised by taxation.
Section 5.2: Rates and Charges. So long as any Parity Bonds remain outstanding, the City
shall fix, charge and collect rates and charges for the use and services of the System which are
calculated to be fully sufficient to produce Net Earnings of the System (as herein defined) in each
fiscal year at least equal to 125% of the principal and interest requirements scheduled to occur in
such fiscal year on all Parity Bonds then outstanding; but in no event shall Net Revenues ever be less
than t he a mount r equired t o m aintain t he I nterest and Sinking Fund and the Reserve Fund as
hereinafter provided, and, to the extent that funds for such purpose are not otherwise available, to
pay all other outstanding obligations payable from the Net Revenues of the System as and when the
same become due.
For purposes of this Section, the term "Net Earnings" shall mean all Net Revenues of the
System, except that in calculating Net Earnings there shall not be deducted as Maintenance and
Operation Expenses any charge, disbursement or expenditure for extensions, repairs or
improvements which, under standard accounting practice, constitute a capital expenditure.
The City will not grant or permit any free service from the System except for public buildings
and institutions operated by the City.
Section 5.3: Special Funds. The creation and confirmation of the following special funds
in the ordinances authorizing the issuance of the Outstanding Bonds is hereby confirmed, and such
funds shall be maintained and accounted for as hereinafter provided, so long as any Parity Bonds
remain outstanding:
(a) Waterworks and Sewer System Revenue Fund (the "Revenue Fund ");
(b) Waterworks and Sewer System Revenue Bonds Interest and Sinking Fund
(the "Interest and Sinking Fund "); and
(c) Waterworks and Sewer System Revenue Bonds Reserve Fund (the "Reserve
Fund ").
The Revenue Fund shall be maintained as a separate account on the books of the City. The Interest
and Sinking Fund and the Reserve Fund shall be maintained at an official depository bank of the City
separate and apart from all other funds and accounts of the City and shall constitute trust funds which
shall be held in trust for the benefit of the Owners of the Parity Bonds and the proceeds of which
(except for interest income, which shall be transferred to the Revenue Fund) shall be and are hereby
pledged to the payment of the Parity Bonds. All of the Funds named above shall be used solely as
provided herein so long as any Parity Bonds remain outstanding.
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Section 5.4: Flow of Funds. All Gross Revenues of the System shall be deposited as
collected into the Revenue Fund. Money from time to time on deposit to the credit of the Revenue
Fund shall be applied as follows in the following order of priority:
(a) First, to pay Maintenance and Operation Expenses;
(b) Second, to make all deposits into the Interest and Sinking Fund required by
this Ordinance, the ordinances authorizing the issuance of the Outstanding
Bonds, and any ordinance authorizing the issuance of Additional Parity
Bonds;
(c) Third, to make all deposits.into the Reserve Fund required by this Ordinance,
the ordinances authorizing the issuance of the Outstanding Bonds, and any
ordinance authorizing the issuance of Additional Parity Bonds;
(d) Fourth, for any lawful purpose.
Whenever the total amounts on deposit to the credit of the Interest and Sinking Fund and the Reserve
Fund shall be equivalent to the sum of the aggregate principal amount of all outstanding Parity
Bonds plus the aggregate amount of all interest accrued and to accrue thereon, no further payments
need be made into the Interest and Sinking Fund or the Reserve Fund.
Section 5.5: Interest and Sinking Fund. On or before the last Business Day of each month
so long as any Parity Bonds remain outstanding, after making all required payments and provision
for payment of Maintenance and Operation Expenses, there shall be transferred into the Interest and
Sinking Fund from the Revenue Fund
(1) such amounts, in approximately equal monthly installments, as will
be sufficient to accumulate the amount required to pay the interest
scheduled to become due on the Parity Bonds on the next interest
payment date; and
(ii) such amounts, in approximately equal monthly installments, as will
be sufficient to accumulate the amount required to pay the next
maturing principal of the Parity Bonds, including the principal
amounts of, and any redemption premium on, any Parity Bonds
payable as a result of the exercise or operation of any optional or
mandatory redemption provision contained in any ordinance
authorizing the issuance of Parity Bonds.
Money deposited to the credit of the Interest and Sinking Fund shall be used solely for the purpose of
paying principal (at maturity or prior redemption or to purchase Parity Bonds issued as term bonds in
the open market to be credited against mandatory redemption requirements), interest and any
redemption premium on the Parity Bonds, plus all bank charges and other costs and expenses relating
to-such payment. On or before each principal and/or interest payment date on the Parity Bonds, the
ffm
City shall transfer from the Interest and Sinking Fund to the paying agents an amount equal to the
principal, interest and any redemption premium payable on the Parity Bonds on such date, together
with an amount equal to all bank charges and other costs and expenses relating to such payment.
The paying agents shall destroy all paid Parity Bonds and shall provide the City with an appropriate
certificate of destruction.
Section 5.6: Reserve Fund. Unless the Reserve Fund is fully funded, on or before the last
Business Day of each month so long as any Parity Bonds remain outstanding, after making all
required payments and provision for payment of Maintenance and Operation Expenses, and after
making the transfers into the Interest and Sinking Fund required in the preceding Section, there shall
be transferred into the Reserve Fund from the Revenue Fund an amount at least equal to one - sixtieth
(1 /60th) of the average annual principal and interest requirements on the Parity Bonds, so that the
Reserve Fund shall contain, in no more than 60 months after the issuance of each such issue of Parity
Bonds, money and investments in an aggregate amount at least equal to the average annual principal
and interest requirements on all Parity Bonds then outstanding. After such amount has accumulated
in the Reserve Fund and so long thereafter as such Fund contains such amount, no further deposits
shall be required to be made into the Reserve Fund, and any excess amounts may be transferred to
the Revenue Fund. But if and whenever the balance in the Reserve Fund is reduced below such
amount, monthly deposits into such Fund shall be resumed and continued in amounts at least equal
to one - sixtieth (1 /60th) of the average annual principal and interest requirements on the Parity Bonds
until the Reserve Fund has been restored to such amount. The Reserve Fund shall be used to pay the
principal of and interest on the Parity Bonds at any time when there is not sufficient money available
in the Interest and Sinking Fund for such purpose and it may be used finally to pay and retire the last
Parity Bonds to mature or be redeemed.
The following provisions shall apply upon final payment or defeasance of all Outstanding
Bonds issued prior to 1998:
To the extent permitted by law, the City expressly reserves the right at any time to satisfy all
or any part of the amounts required to be on deposit in the Reserve Fund (the "Reserve Fund
Requirement ") by obtaining for the benefit of the Reserve Fund one or more Reserve Fund Surety
Policies (a "Reserve Fund Surety Policy "). In the event the City elects to substitute at any time a
Reserve Fund Surety Policy for any funded amounts in the Reserve Fund, it may apply any bond
proceeds thereby released, to the greatest extent permitted by law, to any purposes for which the
bonds were issued, and if all such purposes have been satisfied, to the payment of debt service on
such bonds, and it may apply any other funds thereby released to any of the purposes for which such
funds may lawfully be applied including the payment of debt service on the Parity Bonds. A Reserve
Fund Surety Policy shall be an insurance policy or other similar guarantee in a principal amount
equal to the portion of the Reserve Fund Requirement to be satisfied which is issued by a financial
institution or insurance company with a rating for its long term unsecured debt or claims paying
ability in the highest letter category by two major municipal securities evaluation sources. The
premium for any such policy shall be paid from bond proceeds or other funds of the City lawfully
available for such purpose. The City reserves the right to fund any increase in the Reserve Fund
® Requirement caused by the issuance of Additional Parity Bonds by the purchase of a Reserve Fund
Surety Policy in the amount of such increase or by making transfers from the Revenue Fund to the
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Reserve Fund, in approximately equal monthly installments, in amounts sufficient to accumulate the
increase in the Reserve Fund Requirement within sixty (60) months of the issuance of such
Additional Parity Bonds. If the Reserve Fund contains only cash and the balance in the Reserve
Fund is reduced below the Reserve Fund Requirement at any time, the City shall make monthly
transfers from the Revenue Fund to the Reserve Fund, in approximately equal monthly installments,
in amounts sufficient to restore the balance in the Reserve Fund to the Reserve Fund Requirement
within twelve (12) months of the date on which the balance in the Reserve Fund was so reduced. If
the Reserve Fund contains a Reserve Fund Surety Policy (and no cash) and a draw is made against
such policy, the City shall make monthly transfers from the Revenue Fund, in approximately equal
monthly installments, in amounts sufficient to reimburse the amount drawn under such policy within
twelve (12) months. If the Reserve Fund contains a combination of cash and a Reserve Fund Surety
Policy, and the balance in the Reserve Fund is reduced below the Reserve Fund Requirement by a
combination of cash withdrawals and draws against the Reserve Fund Surety Policy, the City shall
make monthly transfers from the Revenue Fund, in approximately equal monthly installments, in
amounts sufficient to restore the cash balance in the Reserve Fund and reimburse the amount drawn
under such policy within twelve (12) months, with reimbursement to be made for all amounts drawn
under such policy before any cash deposits are made into the Reserve Fund.
Section 5.7: Deficiencies in Funds. If in any month there shall not be deposited into any
Fund maintained pursuant to this Article the full amounts required herein, amounts equivalent to
such deficiency shall be set apart and paid into such Fund or Funds from the first available and
unallocated money in the Revenue Fund, and such payment shall be in addition to the amounts
otherwise required to be paid into such Funds during the succeeding month or months. To the extent
necessary, the rates and charges for the System shall be increased to make up for any such
deficiencies.
Section 5.5: Investment of Funds; Transfer of Investment Income. (a) Money in the
Revenue Fund, the Interest and Sinking Fund and the Reserve Fund may, at the option of the City, be
invested in time deposits or certificates of deposit of commercial banks secured in the manner
required by law for public funds and insured by the Federal Deposit Insurance Corporation to the
maximum extent permitted by law, or be invested in direct obligations of, or obligations fully
guaranteed by, the United States of America; provided that all such deposits and investments shall be
made in such manner that the money required to be expended from any Fund will be available at the
proper time or times, and provided further that in no event shall such deposits or investments of
money in the Reserve Fund mature later than the final maturity date of the Parity Bonds. Any
obligation in which money is so invested shall be kept and held in the official depository bank of the
City at which the Fund is maintained from which the investment was made. All such investments
shall be promptly sold when necessary to prevent any default in connection with the Parity Bonds.
(b) All interest and income derived from such deposits and investments shall be
transferred or credited as received to the Revenue Fund, and shall constitute Gross Revenues of the
System.
0 Section 5.9: Security for Uninvested Funds. So long as any Parity Bonds remain
outstanding, all uninvested money on deposit m, or credited to, the Revenue Fund, the Interest and
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Sinking Fund and the Reserve Fund shall be secured by the pledge of security, as provided by Texas
law.
Section 5.10: Application of Chanter 1208, Government Code. Chapter 1208, Government
Code, applies to the issuance of the Bonds and the pledge of the revenues granted by the City under
Section 5.1 of this Ordinance, and such pledge is therefore valid, effective and perfected. If Texas
law is amended at any time while the Bonds are outstanding and unpaid such that the pledge of the
revenues granted by the City under Section 5.1 of this Ordinance is to be subject to the filing
requirements of Chapter 9, Business & Commerce Code, then in order to preserve to the registered
owners of the Bonds the perfection of the security interest in said pledge, the City agrees to take such
measures as it determines are reasonable and necessary under Texas law to comply with the
applicable provisions of Chapter 9, Business & Commerce Code and enable a filing to perfect the
security interest in said pledge to occur.
ARTICLE VI
ADDITIONAL PARITY BONDS
Section 6.1.: Additional Parity Bonds. The City reserves the right to issue, for any lawful
purpose (including the refunding of any previously issued Parity Bonds or any other bonds or
obligations of the City issued in connection with or payable from the revenues of the System), one or
more series of Additional Parity Bonds payable from and secured by a first lien on the Net Revenues
of the System, on a parity with the Bonds, the Outstanding Bonds, and any previously issued
Additional Parity Bonds; provided, however, that no Additional Parity Bonds may be issued unless:
(a) The Additional Parity Bonds mature on, and interest is payable on, the same
days of the year as the Bonds;
(b) The Interest and Sinking Fund and the Reserve Fund each contains the
amount of money then required to be on deposit therein;
(c) For either the preceding fiscal year or any consecutive 12 -month period out of
the 18 month period immediately preceding the month in which the ordinance
authorizing such Additional Parity Bonds is adopted (the "Base Period "),
either:
(1) Net Earnings of the System (as hereinbelow defined) were
equal to at least 125% of the average annual principal and
interest requirements on all Parity Bonds that will be
outstanding after the issuance of the series of Additional
Parity Bonds then proposed to be issued, as certified by the
City's Assistant City Manager/Finance or by an independent
certified public accountant or fine of independent certified
public accountants; or
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® (2) Net Earnings of the System, as adjusted to give effect to any
rate increase for the System that has been in effect for at least
60 days prior to the adoption of the ordinance authorizing the
issuance of the series of Additional Parity Bonds then
proposed to be issued, to the same extent as if such rate
increase had been in effect for the entire Base Period, would
have been at least equal to the amount required in paragraph
(1) above, as certified by an independent consulting engineer
or independent firm of consulting engineers;
17J
provided, however, that this requirement shall not apply to the issuance of
any series of Additional Parity Bonds for refunding purposes that will have
the result of reducing the average annual principal and interest requirements
on Parity Bonds; and
(d) Provision is made in the ordinance authorizing the Additional Parity Bonds
then proposed to be issued for (1) additional payments into the Interest and
Sinking Fund sufficient to provide for any increased principal and interest
requirements on the Parity Bonds resulting from the issuance of the
Additional Parity Bonds and (2) payments into the Reserve Fund so that such
Fund will, in not later than 60 months from the date of issuance of such
Additional Parity Bonds, contain a balance not less than the average annual
principal and interest requirements on all Parity Bonds that will be
outstanding after the issuance of such series of Additional Parity Bonds.
For purposes of Section 6.1(c), the term "Net Earnings of the System" shall mean all of the
Net Revenues of the System, except that in calculating Net Earnings there shall not be deducted as
Maintenance and Operation Expenses any charge, disbursement or expenditure for extensions,
repairs or improvements which, under standard accounting practice, constitutes a capital expenditure.
Section 6.2: Subordinate Lien Bonds. The City reserves the right to issue, for any lawful
purpose, bonds, notes or other obligations secured in whole or in part by liens on the Net Revenues
that are junior and subordinate to the lien on Net Revenues securing payment of the Parity Bonds.
Such subordinate lien obligations may be further secured by any other source of payment lawfully
available for such purposes.
Section 6.3: Special Project Bonds. The City reserves the right to issue revenue bonds
secured by liens on and pledges of revenues and proceeds derived from Special Projects.
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ARTICLE VII
COVENANTS AND PROVISIONS RELATING TO THE SYSTEM
Section 7.1: Punctual Payment of Parity Bonds. The City will punctually pay or cause to
be paid the interest on and principal of all Parity Bonds according to the terms thereof and will
faithfully do and perform, and at all times fully observe, any and all covenants, undertakings,
stipulations and provisions contained in this Ordinance and in any ordinance authorizing the issuance
of Additional Parity Bonds.
Section 7.2: Maintenance of System. So long as any Pari ty Bonds remain outstanding, the
City covenants that it will at all times maintain the System, or within the limits of its authority cause
the same to be maintained, in good condition and working order and will operate the same, or cause
the same to be operated, in an efficient and economical manner at a reasonable cost and in
accordance with sound business principles. In operating and maintaining the System, the City will
comply with all contractual provisions and agreements entered into by it and with all valid rules,
regulations, directions or orders of any governmental, administrative, or judicial body promulgating
same, noncompliance with which would materially and adversely affect the operation of the System.
Section 73: Sale or Encumbrance of System. So long as any Parity Bonds remain
outstanding, the City will not sell, dispose of or, except as permitted in Article VI, further encumber
the System; provided, however, that this provision shall not prevent the City from disposing of any
portion of the System which is being replaced or is deemed by the City to be obsolete, worn out,
surplus or no longer needed for the proper operation of the System. Any agreement pursuant to
which the City contracts with a person, corporation, municipal corporation or political subdivision to
operate the System or to lease and/or operate all or part of the System shall not be considered as an
encumbrance of the System.
Section 7.4: Insurance. The City further covenants and agrees that it will keep the System
insured with insurers of good standing against risks, accidents or casualties against which and to the
extent customarily insured against by political subdivisions of the State of Texas operating similar
properties, to the extent that such insurance is available. The cost of all such insurance together with
any additional insurance, shall be a part of the Maintenance and Operation Expenses. All net
proceeds of such insurance shall be applied to repair or replace the insured property that is damaged
or destroyed, or to make other capital improvements to the System, or to redeem Parity Bonds.
Section 7.5: Accounts, Records, and Audits. So long as any Parity Bonds remain
outstanding, the City covenants and agrees that it will maintain a proper and complete system of
records and accounts pertaining to the operation of the System in which full, true and proper entries
will be made of all dealings, transactions, business and affairs which in any way affect or pertain to
the System or the Gross Revenues or the Net Revenues thereof. The City shall after the close of each
of its fiscal years cause an audit report of such records and accounts to be prepared by an
• independent certified public accountant or independent firm of certified public accountants. Each
year promptly after such audit report is prepared, the City shall furnish a copy thereof without cost to
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the Municipal Advisory Council of Texas, the major municipal rating agencies and any owners of
Parity Bonds who shall request same. All expenses incurred in preparing such audits shall be
Maintenance and Operation Expenses.
Section 7.6: Competition. To the extent it legally may, the City will not grant any
franchise or permit for the acquisition, construction, or operation of any competing facilities which
might be used as a substitute for the System and will prohibit the operation of any such competing
facilities.
Section 7.7: Pledge and Encumbrance of Net Revenues. The City covenants and represents
that it has the lawful power to create a lien on and to pledge the Net Revenues to secure the payment
of the Parity Bonds and has lawfully exercised such power under the Constitution and laws of the
State of Texas. The City further covenants and represents that, other than to the payment of the
Parity Bonds, the Net Revenues are not and will not be made subject to any other lien, pledge or
encumbrance to secure the payment of any debt or obligation of the City, unless such lien, pledge or
encumbrance is junior and subordinate to the lien and pledge securing payment of the Parity Bonds.
Section 7.$: Bondowners' Remedies. This Ordinance shall constitute a contract between
the City and the Owners of the Parity Bonds from time to time outstanding and this Ordinance shall
be and remain irrepealable until the Parity Bonds and the interest thereon shall be fully paid or
discharged or provision therefor shall have been made as provided herein. In the event of a default in
the payment of the principal of or interest on any of the Parity Bonds or a default in the performance
of any duty or covenant provided by law or in this Ordinance, the Owner or Owners of any of the
Parity Bonds may pursue all legal remedies afforded by the Constitution and laws of the State of
Texas to compel the City to remedy such default and to prevent further default or defaults. Without
in any way limiting the generality of the foregoing, it is expressly provided that any Owner of any of
the Parity Bonds may at law or in equity, by suit, action, mandamus, or other proceedings, enforce
and compel performance of all duties required to be performed by the City under this Ordinance,
including the making and collection of reasonable and sufficient rates and charges for the use and
services of the System, the deposit of the Gross Revenues into the special funds herein provided, and
the application of such Gross Revenues and Net Revenues in the manner required in this Ordinance.
Section 7.9: Discharge by Deposit. The City may discharge its obligation to the Owners of
any or all of the Parity Bonds to pay principal, interest and redemption premium (if any) thereon in
any manner then permitted by law, including by depositing with any paying agent for such Parity
Bonds or with the State Treasurer of the State of Texas either: (i) cash in an amount equal to the
principal amount and redemption premium, if any, of such Parity Bonds plus interest thereon to the
date of maturity or redemption, or (ii) pursuant to an escrow or trust agreement, cash and/or direct
obligations of the United States of America, in principal amounts and maturities and bearing interest
at rates sufficient to provide for the timely payment of the principal amount and redemption
premium, if any, of such Parity Bonds plus interest thereon to the date of maturity or redemption;
provided, however, that if any of such Parity Bands are to be redeemed prior to their respective dates
of maturity, provision shall have been made for giving notice of redemption as provided in the
® ordinance authorizing such Parity Bonds. Upon such deposit, such Parity Bonds shall no longer be
regarded to be outstanding or unpaid.
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Section 7.10: Paying Agents May Own Parity Bonds. The paying agents for the Parity
Bonds, in their individual or any other capacity, may become holders or pledges of the Parity Bonds
with the same rights they would have if they were not paying agents.
Section 7.11: No Recourse Against City Officials. No recourse shall be had for the payment
of principal of or interest on any Parity Bonds or for any claim based thereon or on this Ordinance
against any official of the City or any person executing any Parity Bonds.
ARTICLE VIII
PROVISIONS CONCERNING SALE AND
APPLICATION OF PROCEEDS OF BONDS
Section 8.1: Sale; Bond Purchase Agreement. The Bonds are hereby sold and shall be
delivered to the Underwriters at a price of $ , plus accrued interest to the date of
delivery, in accordance with the terms of the Bond Purchase Agreement of even date herewith,
presented to and hereby approved by the City Council, which price and terms are hereby found and
determined to be the most advantageous reasonably obtainable by the City. The Mayor and other
appropriate officials of the City are hereby authorized and directed to execute the Bond Purchase
Agreement on behalf of the City, and the Mayor and all other officers, agents and representatives of
the City are hereby authorized to do any and all things necessary or desirable to satisfy the conditions
set out therein and to provide for the issuance and delivery of the Bonds.
Section 8.2: Federal Income Tax Inclusion.
(a) General Tax Covenant. The City intends that the interest on the Bonds shall be
excludable from gross income for purposes of federal income taxation pursuant to sections 103 and
141 through 150 of the Internal Revenue Code of 1986, as amended (the "Code), and applicable
Income Tax Regulations (the "Regulations "). The City covenants and agrees not to take any action,
or knowingly omit to take any action within its control that, if aken or omitted, respectively, would
cause the interest on the Bonds to be includable in gross income, as defined in section 61 of the
Code, for federal income tax purposes. In particular, the City covenants and agrees to comply with
each requirement of this Section; provided, however, that the City shall not be required to comply
with any particular requirement of this Section if the City has received an opinion of nationally
recognized bond counsel ( "Counsel's Opinion ") that such noncompliance will not adversely affect
the exclusion from gross income for federal income tax purposes of interest on the Bonds or if the
City has received a Counsel's Opinion to the effect that compliance with some other requirement set
forth in this Section will satisfy the applicable requirements of the Code and Regulations, in which
case compliance with such other requirement specified in such Counsel's Opinion shall constitute
compliance with the corresponding requirement specified in this Section.
(b) No Private Use or Payment and No Private Loan Financing. The City shall certify,
® through an authorized officer, employee or agent that based upon all facts and estimates known or
reasonably expected to be in existence on the date the Bonds are delivered, that the proceeds of the
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Bonds will not be used in a manner that would cause the Bonds to be "private activity bonds" within
the meaning of section 141 of the Code and the Regulations promulgated thereunder. Moreover, the
City covenants and agrees that it will make such use of the proceeds of the Bonds including interest
or other investment income derived from Bond proceeds, regulate the use of property financed,
directly or indirectly, with such proceeds, and take such other and further action as may be required
so that the Bonds will not be "private activity bonds" within the meaning of section 141 of the Code
and the Regulations promulgated thereunder.
(c) No Federal Guarantee. The City covenants and agrees not to take any action, or
knowingly omit to take any action within its control, that, if taken or omitted, respectively, would
cause the Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Code and
the applicable Regulations thereunder, except as permitted by section 149(b)(3) of the Code and such
Regulations.
(d) No Hedge Bonds. The City covenants and agrees that it has not and will not take any
action, and has not knowingly omitted and will not knowingly omit to take any action, within its
control, that, if taken or omitted, respectively, would cause the Bonds to be "hedge bonds" within the
meaning of section 149(8) of the Code and the applicable Regulations thereunder.
(e) No Arbitrage. The City shall certify, through an authorized officer, employee or agent
that based upon all facts and estimates known or reasonably expected to be in existence on the date
the Bonds are delivered, the City will reasonably expect that the proceeds of the Bonds will not be
used in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning of section
148(a) of the Code and the applicable Regulations promulgated thereunder. Moreover, the City
covenants and agrees that it will make such use of the proceeds of the Bonds including interest or
other investment income derived from Bond proceeds, regulate investments of proceeds of the
Bonds, and take such other and further action as may be required so that the Bonds will not be
"arbitrage bonds" within the meaning of section 148(a) of the Code and the applicable Regulations
promulgated thereunder.
(f) Arbitrage Rebate. If the City does not qualify for an exception to the requirements of
section 148(f) of the Code relating to the required rebate to the United States, the City will take all
necessary steps to comply with the requirement that certain amounts earned by the City on the
investment of the "gross proceeds" of the Bonds (within the meaning of section 148(f)(6)(B) of the
Code), be rebated to the federal government. Specifically, the City will (i) maintain records
regarding the investment of the gross proceeds of the Bonds as may be required to calculate the
amount earned on the investment of the gross proceeds of the Bonds separately from records of
amounts on deposit in the funds and accounts of the City allocable to other bond issues of the City or
moneys which do not represent gross proceeds of any bonds of the City, (ii) calculate at such times
as are required by applicable Regulations, the amount earned from the investment of the gross
proceeds of the Bonds which is required to be rebated to the federal government, and (iii) pay, not
less often than every fifth anniversary date of the delivery of the Bonds or on such other dates as may
be permitted under applicable Regulations, all amounts required to be rebated to the federal
government. Further, the City will not indirectly pay any amount otherwise payable to the federal
government pursuant to the foregoing requirements to any person other than the federal government
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by entering into any investment arrangement with respect to the gross proceeds of the Bonds that
might result in a reduction in the amount required to be paid to the federal government because such
arrangement results in a smaller profit or a larger loss than would have resulted if the arrangement
had been at arm's length and had the yield on the issue not been relevant to either party.
(g) Information Reporting. The City covenants and agrees to file or cause to be filed with
the Secretary of the Treasury, not later than'the 15th day of the second calendar month after the close
of the calendar quarter in which the Bonds are issued, an information statement concerning the
Bonds, all under and in accordance with section 149(e) of the Code and the applicable Regulations
promulgated thereunder.
(h) Continuing Obligation. Notwithstanding any other provision of this Ordinance, the
City's obligations under the covenants and provisions of this Section shall survive the defeasance and
discharge of the Bonds.
Section 8.3: Use of Proceeds. Proceeds from the sale of the Bonds shall, promptly upon
receipt by the City, be applied as follows:
(a) Accrued interest and any premium on the Bonds shall be deposited
into the Interest and Sinking Fund.
(b) The balance of the proceeds from the sale of the Bonds shall be
applied to establish an escrow fund to refund the Refunded Bonds, as
more fully provided below, and, to the extent not otherwise provided
for, to pay all expenses arising in connection with the issuance of the
Bonds, the establishment of such escrow fund and the refunding of
the Refunded Bonds. Any proceeds of the Bonds remaining after
making all such deposits and payments shall be deposited into the
Interest and Sinking Fund.
Section 8.4: Escrow Agreement. The discharge and defeasance of the Refunded Bonds
shall be effectuated pursuant to the terms and provisions of an Escrow Agreement to be entered into
by and between the City and the Escrow Agent, the terms and provisions of which are hereby
approved, subject to such insertions, additions and modifications as shall be necessary (a) to carry
out the program designed for the City by the Underwriters, which shall be certified as to
mathematical accuracy by Grant Thornton LLP, (b) to minimize the City's costs of refunding, (c) to
comply with all applicable laws and regulations relating to the refunding of the Refunded Bonds and
(d) to carry out the other intents and purposes of this Ordinance, and the Mayor or Mayor Pro Tem is
hereby authorized to execute and deliver such Escrow Agreement on behalf of the City in multiple
counterparts and the City Clerk or an Assistant City Clerk is hereby authorized to attest thereto and
affix the City's seal.
Section 8.5: Redemption of Refunded Bonds. The City hereby authorizes and directs that
® the Refunded Bonds shall be called for redemption prior to maturity in the amounts, on the dates and
at the redemption prices set forth in Exhibit A attached hereto, and the Mayor and City Clerk are
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•
hereby authorized and directed to take all necessary and appropriate action to give or cause to be
given a notice of redemption to the holders or paying agent/registrars, as appropriate, of such
Refunded Bonds, and, if required, to publish such notices, all in the manner required by the
ordinances authorizing the issuance of such Refunded Bonds.
Section 8.6: Purchase of United States Treasury Obligations. To assure the purchase of the
Escrowed Securities referred to in the Escrow Agreement, the Mayor or Mayor Pro Tem, the City
Manager, the Director of Finance, and the Escrow Agent are hereby authorized to subscribe for,
agree to purchase, and purchase non - callable obligations of the United States of America, in such
amounts and maturities and bearing interest at such rates as maybe provided form the Report, and to
execute any and all subscriptions, purchase agreements, commitments, letters of authorization and
other documents necessary to effectuate the foregoing, and any actions heretofore taken for such
purpose are hereby ratified and approved.
ARTICLE IX
CONTINUING DISCLOSURE
Section 9.1: Continuing Disclosure Undertaking. (a) Annual Reports. The City shall
provide annually to each NRMSIR and the SID, within six months after the end of each fiscal year,
financial information and operating data with respect to the City of the general type included in the
final Official Statement authorized by Section 10.1 of this Ordinance under Tables numbered 1
through 1 through 9, and in Appendix B. The information to be provided will include audited
financial statements, if the City commissions an audit and it is completed by the required time. If
audited financial statements are not available by the required time, the City will provide unaudited
financial statements at the required time and audited financial statements when and if they become
available. Any financial statements so to be provided shall be prepared in accordance with the
accounting principles described in Appendix B to the Official Statement, or such other accounting
principles as the City may b e r equired t o e mploy f rom t ime t o t ime p ursuant t o S tate 1 aw o r
regulation.
If the City changes its fiscal year, it will notify each NRMSIR and the SID of the change (and
of the date of the new fiscal year end) prior to the next date by which the City otherwise would be
required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may be
set forth in full in one or more documents or may be included by specific reference to any document
(including an official statement or other offering document, if it is available from the MSRB) that
theretofore has been provided to each NRMSIR and the SID or filed with the SEC.
(b) Material Event Notices. The City shall notify the Sr[) and either each NRMSIR or the
MSRB, in a timely manner, of any of the following events with respect to the Bonds, if such event is
material within the meaning of the federal securities laws:
ME
A.
Principal and interest payment delinquencies;
B.
Non - payment related defaults;
C.
Unscheduled draws on debt service reserves reflecting financial
difficulties;
D.
Unscheduled draws on credit enhancements reflecting financial
difficulties;
E.
Substitution of credit or liquidity providers, or their failure to
perform;
F.
Adverse tax opinions or events affecting the tax - exempt status of the
Bonds;
G.
Modifications to rights of holders of the Bonds;
H.
Bond calls;
I.
Defeasances;
J.
Release, substitution, or sale of property securing repayment of the
Bonds; and
K.
Rating changes.
The City shall notify the SID and either each NRMSIR or the MSRB, in a timely manner, of
any failure by the City to provide financial information or operating data in accordance with Section
25(a) of this Ordinance by the time required by such Section.
(c) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe
and perform the covenants specified in this Section for so long as, but only for so long as, the City
remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that
the City in any event will give notice of any deposit made in accordance with Texas law that causes
Bonds no longer to be outstanding.
The provisions of this Section are for the sole benefit of the holders and beneficial owners of
the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or
equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only
the financial information, operating data, financial statements, and notices which it has expressly
agreed to provide pursuant to this Section and does not hereby undertake to provide any other
information that may be relevant or material to a complete presentation of the City's financial results,
condition, or prospects or hereby undertake to update any information provided in accordance with
this Section or otherwise, except as expressly provided herein. The City does not make any
representation or warranty concerning such information or its usefulness to a decision to invest in or
sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT,
FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY,
WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
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•
No default by the City in observing or performing its obligations under this Section shall
comprise a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance. -
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
The provisions of this Section may be amended by the City from time to time to adopt to
changed circumstances that arise from a change in legal requirements, change in law, or change in
the i dentity, n ature, s tatus o r t ype o f o perations o f t he C ity, but only if (1) the agreement, as
amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of
the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the
Rule to the date of such amendment, as well as such changed circumstances, and (2) either (a) the
holders of a majority in aggregate principal amount of the outstanding Bonds consent to such
amendment, or (b) a person unaffiliated with the City (such as nationally recognized bond counsel),
determines that the amendment will not materially impair the interests of the holders and beneficial
owners of the Bonds. The City may also amend or repeal the provisions of this continuing disclosure
agreement if the SEC amends or repeals the applicable provisions of the Rule or a court of final
J urisdiction enters judgment hat such provisions of the Rule are invalid, but only if and to the extent
that the provisions of this sentence would not prevent an underwriter form lawfully purchasing or
selling Bonds in the primary offering of the Bonds. If any such amendment is made, the City will
include in its next annual update an explanation in narrative form of the reasons for the change and
its impact on the type of operating data or financial information being provided.
ARTICLE X
MISCELLANEOUS
Section 10.1: Official Statement. The City Council ratifies and confirms its prior approval
of the form and content of the Preliminary Official Statement prepared in the initial offering and sale
of the Bonds and hereby authorizes the preparation of a final Official Statement reflecting the terms
of the Bond Purchase Agreement with the Underwriters and other relevant matters. The use of such
Official Statement in the reoffering of the Bonds by the Underwriters is hereby approved and
authorized.
Section 10.2: Paving Agent/Registrar Agreement. The form of agreement setting forth the
duties of the Registrar is hereby approved, and the appropriate officials of the City are hereby
authorized to execute such agreement for and on behalf of the City.
Section 10.3: Further Proceedings. The Mayor, the City Clerk, and other appropriate
officials of the City are hereby authorized and directed to do any and all things necessary and/or
convenient to carry out the terms of this Ordinance.
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• Section 10.4: Severability. If any Section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Ordinance.
Section 10.5: Open Meeting. It is hereby officially found and determined that the meeting at
which this Ordinance was adopted was open to the public, and that public notice of the time, place
and purpose of said meeting was given, all as required by the Texas Open Meetings Act.
Section 10.6: No Personal Liability. No recourse shall be had for payment of the principal
of or interest on any Bonds or for any claim based thereon, or on this Ordinance, against any official
or employee of the City or any person executing any Bonds.
Section 10.7: Parties Interested. Nothing in this Ordinance expressed or implied is intended
or shall be construed to confer upon, or to give to, any person or entity, other than the City, the
Registrar and the Owners of the Bonds, any right, remedy or claim under or by reason of this
Ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises
and agreements in this Ordinance shall be for the sole and exclusive benefit of the City, the Registrar
and the Owners of the Bonds.
Section 10.8: Repealer. All orders, resolutions and ordinances, or parts thereof, inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 11: 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 10`h day of April, 2003.
- Z�& d- ez-�
PETE C. ALFARO, Mayor
ATTEST:
GAY W. SN?ITH, City Clerk
APPROVED AS TO FORM:
NACIO R"IRE OR., City Attorney
rF Veanene\My Documents\ Council\ 02 -03\ April\ WaterworksSewcrSystemRefundingBonds2o03 .DOC
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Published in the Baytown Sun on
Wednesday, April 16, 2003 and
ORDINANCE NO. 9546 Thursday, April 17, 2003
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AMENDING CHAPTER 42 "HEALTH AND SANITATION,"
ARTICLE II "PUBLIC HEALTH HAZARDS," DIVISION 2 "PUBLIC
HEALTH NUISANCES," SECTION 42 -63 "MAINTENANCE OF PRIVATE
SEWER LINES," SUBSECTION (B) OF THE CODE OF ORDINANCES,
BAYTOWN, TEXAS, TO EXTEND THE PERIOD OF TIME BY WHICH A
PRIVATE SEWER LINE MUST BE REPAIRED; PRESCRIBING A
MAXIMUM PENALTY OF TWO THOUSAND AND NO 1100 DOLLARS
($2,000.00); PROVIDING A REPEALING CLAUSE; CONTAINING A
SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND
EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That Chapter 42 "Health and Sanitation," Article H "Public Health
Hazards," Division 2 "Public Health Nuisances," Section 42 -63 "Maintenance of private sewer
lines" Subsection (b) of the Code of Ordinances, City of Baytown, Texas, is hereby amended to
read as follows:
CHAPTER 42. HEALTH AND SANITATION
ARTICLE II. PUBLIC HEALTH HAZARDS
Division 2. Public Health Nuisances
Sec. 42 -63. Maintenance of private sewer lines.
(b) If a property owner's sewer line becomes damaged, defective or deteriorated to the extent
that it admits earth or surface or subsurface water or permits the escape of effluents, the
owner shall be notified by the city of the line's condition and that repairs must be made
within 30 days after receipt of such notice unless a longer period of time not exceeding
180 days is specified in the notice. Notices shall be sent certified mail. However, if a
property owner's sewer line becomes damaged, defective or deteriorated to the extent that
it constitutes a public nuisance, as defined in section 42 -61 and prompt abatement is a
public necessity, this section, along with the notice procedures contained in this division,
shall not apply.
Section 2: Any person who fails to comply with any provision of this ordinance shall
be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding
TWO THOUSAND AND NO /100 DOLLARS ($2,000.00). Each act of violation and each day
upon which any such violation shall occur shall constitute a separate offense. In addition to the
penalty prescribed above, the city may pursue other remedies such as abatement of nuisances,
injunctive relief, administrative adjudication and revocation of licenses or permits.
• Section 3: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
such inconsistency and in all other respects this ordinance shall be cumulative of other
ordinances regulating and governing the subject matter covered by this ordinance.
Section 4: If any provision, section, exception, subsection, paragraph, sentence,
clause or phrase of this ordinance or the application of same to any person or the set of
circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall
not affect the validity of the remaining provisions of this ordinance or their application to other
persons or sets of circumstances and to this end all provisions of this ordinance are declared to be
severable.
Section 5: This ordinance shall take effect from and after ten (10) days from its
passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing
the caption of this ordinance to be published in the official newspaper of the City of Baytown at
least twice within ten (10) days after passage of this ordinance.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 10th day of April, 2003.
PETEC. ALFAOR, Mayor
ATTEST:
GAY 'M SWTH, City Clerk
APPROVED AS TO FORM:
eligNACIO RAMIREZ, ., City Attorney
0 rAKaren\riles \Ciry Council\ Ordinances \RepairotPrivateSewer[_ine.doc
2
ORDINANCE NO. 9545
• AN ORDINANCE OF THE.CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AMENDING THE BAYTOWN 2020 COMPREHENSIVE PLAN TO
UPDATE THE CITY OF BAYTOWN 2012 AND 2020 LAND USE PLAN
MAPS; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the Baytown 2020 Comprehensive Plan updated of the 1992 Comprehensive
Plan that assists City officials, staff and citizens in making sound decisions affecting the future
growth and development of the City and the surrounding area; and
WHEREAS, in preparing the City's water and wastewater comprehensive master plan
and capital recovery fee, it was discovered that the City of Baytown 2012 and 2020 Land Use
Plan Maps should be updated; and
WHEREAS, such maps were updated to better reflect population growth and future
development in the City of Baytown and were proposed as an amendment to the Baytown 2020
Comprehensive Plan; and
WHEREAS, the amendment of the Baytown 2020 Comprehensive Plan updating the City
of Baytown 2012 and 2020 Land Use Plan Maps has been reviewed by the Baytown Area
Community Long -Range Planning Commission and the Planning and Building Services
Department; and
WHEREAS, on January 28, 2003, the Commission voted unanimously to recommend
that the City Council approve the amendment of the Baytown 2020 Comprehensive Plan to
update the City of Baytown 2012 and 2020 Land Use Plan Maps; and
WHEREAS, on April 10, 2003, a public hearing was conducted at which the public was
given the opportunity to give testimony and present written evidence regarding this amendment
of the Baytown 2020 Comprehensive Plan; and
WHEREAS, the City Council desires to amend Baytown 2020 Comprehensive Plan to
update the City of Baytown 2012 and 2020 Land Use Plan Maps to better reflect population
growth and future development in the City of Baytown; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: All matters and facts set forth in the recitals above are found to be true,
and are approved as the processes and procedures which the City Council of the City of Baytown
undertook and completed prior to the adoption of this ordinance.
Section 2: That the City Council of the City of Baytown, Texas, hereby amends the
4D Baytown 2020 Comprehensive Plan to update the City of Baytown 2012 and 2020 Land Use
Plan Maps. A copy of said maps are attached hereto, marked Exhibit "A," and made a part hereof
for all intents and purposes.
Section 3: The comprehensive plan adopted in Section 1 hereof shall serve as a frame
of reference for future actions of the City officers, staff, and citizens. This adoption recognizes
that each individual action referring to the plan must be a stand -atone action based on all factors
known at the time the action is taken.
Section 4: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the loth day of April, 2003.
_ x& e. ,01
PETE C. ALFARO, Mayor
ATTEST:
G�Cl�1'�isi�i�1
LT< .Y STNUTH, City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, So., City Attorney
0 FAKaren\FileslCity Council\ Ordinances\ UpdatingComprehensivePlanUndUseMap .doc
