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Ordinance No. 9,803ORDINANCE NO. 9803 ® AN ORDINANCE OF THE CITY -OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LETTER AGREEMENT WITH THE BAY AREA HERITAGE SOCIETY OF BAYTOWN, TEXAS, FOR THE PERFORMANCE OF HISTORICAL RESTORATION AND PRESERVATION SERVICES AT THE BROWN - MCKAY HOUSE LOCATED AT THE REPUBLIC OF TEXAS PLAZA FOR TOURISTS AND THE COMMUNITY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a letter agreement with The Bay Area Heritage Society of Baytown, Texas, for the performance of historical restoration and preservation services at the Brown -McKay House located at the Republic of Texas Plaza for tourists and the community. 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 13th day of May, 2004. 114- �. PETE C. ALFARO, Mayor ATTEST: Clerk City APPROVED AS TO FORM: ftYNACIO RAMIREZ, S , City Attorney 0 FAKaren \files \City Council\ ordinancesl BayAreaHcritageSocietyBrown- McKayHouseRenovations.doc LEGAL DEPARTMENT CITY OF BAYTOWN 2401 MARKET P.O. BOX 424 BAYTOWN,TX. 77522 -0424 IGNACIO RAMIREZ, SR. JULIE K. ESCALANTE CITY ATTORNEY ASSISTANT CITY ATTORNEY April 30, 2004 Ms. Wanda S. Mitchell The Bay Area Heritage Society of Baytown, Texas 220 W. Defee Street Baytown, TX 77520 Re: Letter Agreement Dear Ms. Mitchell: (281) 420 -6505 FAX (281) 420 -6586 legal @baytown.org KAREN L.HORNER FIRST ASSISTANT CITY ATTORNEY This Letter Agreement ( "Agreement ") evidences the terms and conditions under which The Bay Area Heritage Society of Baytown, Texas (the "Society "), a Texas non -profit corporation, will perform services on behalf of the City of Baytown (the "City ") should the City Council approve this Agreement at its meeting to be held on the 13`h of May, 2004. I. Society's Obli atg ions 1.01 Society's Services. The Society covenants and agrees that it will perform historical restoration and preservation services for tourists and the community of the Brown -McKay House located at the Republic of Texas Plaza and shall be responsible for all costs associated therewith, including, but not limited to, all restoration, maintenance, upkeep and utilities expenses at the site along with all management and supervision responsibilities of the related programs and activities. 1.02 Society's Compliance. The Society agrees to comply with all laws, rules or regulations of applicable governmental authorities in performing the services required herein. Such laws, rules and regulations include strict compliance with all building codes of the City of Baytown. 1.03 Society's Obligations. A. Annual Budget and Reports. The Society understands that by accepting monies paid by the City pursuant to Article I1, the Society has the obligation to submit its annual budget to the City Council for approval and shall make quarterly reports to the City Council regarding the expenditures made with the funds paid by the City in accordance with Article II hereof. B. Duty with Respect to Funds Received. Any fee received by the Society pursuant to this Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally, by receiving the monies pursuant to Article I1 hereof, the Society has a fiduciary duty to the City with respect to such monies. C. Financial Records. The Society shall maintain complete and accurate financial records of the • expenditure of funds provided by the City pursuant to this Agreement and, on request of the City Council or any other person, shall make the records available for inspection and review within five days of receipt of a request. EXHBIC A Bay Area Heritage Society April 30, 2004 Page 2 0 n. City's Obli ation 2.01 City's Sole Obligation. The Society and the City expressly understand and agree that the only obligation of the City under this Agreement is to pay a one -time fee not to exceed FIVE THOUSAND AND NO 1100 DOLLARS ($5,000.00) to the Society for renovations to the Brown -McKay House, which is located at the Republic of Texas Plaza at the Gray Sports Complex. The parties understand and agree that the fee will not be greater than the actual expense incurred by the Society in renovating the Brown -McKay House. 2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth (30`s) day after receiving a proper invoice therefor. However, the parties agree that such invoice shall not be submitted to the City until the restoration is completed and approved by the City. III. Miscellaneous Provisions 3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may, and the Society explicitly recognizes the City's right to, terminate this Agreement by giving written notice to the Society. Additionally, it is understood that the City may terminate this Agreement at anytime without cause by giving written notice of such termination to the Society. Termination shall take effect immediately on receipt thereof by the Society. 3.02 Address and Notice. Unless otherwise provided in this Agreement, any notice, communication, request, reply or advice (herein severally and collectively for convenience, called "Notice ") herein provided or permitted to be given, made or accepted by any party to the other must be in writing and may be given or served by depositing the same in the United States mail, postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram, when appropriate, addressed to the parry to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of notice, the address of the parties shall, until changed as hereinafter provided, be as follows: If to the City, to City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 -0424 If to the Society, to The Bay Area Heritage Society of Baytown, Texas Attn: Registered Agent 220 W. Defee Street Baytown, TX 77520 3.03 Assienabili-ty. This Agreement shall bind and benefit the respective parties and their legal successors and .shall not be assignable in whole or in part by any parry without first obtaining written consent of the other party. 3.04 No Additional Waiver Implied. The failure of any party hereto to insist, in anyone or more instances, upon performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or Bay Area Heritage Society April 30, 2004 Page 3 9ellinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. 3.05 Modification. Except as otherwise provided herein, this Agreement shall be subject to change or modification only with the mutual written consent of the parties hereto. 3.06 Independent Contractor. The relationship of the Society to the City shall be that of an independent contractor. The City shall have no authority to direct the day -to -day activities of any of the Society's personnel decisions, and shall have no other rights to internal working papers or other information or data than the City would have to any other independent contractor providing specific services. 3.07 Release. 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 contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. The Society assumes full responsibility for its services performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Society's work to be performed hereunder. This release shall apply with respect to the Society's services regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 3.08 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parries hereto and shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to any patron or contractor of the Society for any failure to perform its obligations under this Agreement. 3.09 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. 3.10 SeverabilitL' The provisions of this Agreement are severable, and if any provision or part of this Agreement or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this Agreement to other persons or circumstances shall not be affected thereby. 3.11 Merge . This Agreement embodies the entire understanding and agreement between the parties as to the services to be provided herein, and there are no prior effective representations, warranties or agreements between the parties. 3.12 Construction of Agreement. The parties agree that this Agreement shall not be construed in favor of or against any parry on the basis that the party did or did not author this Agreement. 3.13 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the expiration of one year, unless earlier terminated in accordance with Section 3.01. 3.14 Choice of Law and Venue. This Agreement shall in all respects be interpreted and construed in accordance Wace ith and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 115 Authori . The officers executing this Agreement on behalf of the parties hereby represents that such officers have full authority to execute this Agreement and to bind the party he /she represents. Bay Area Heritage Society April 30, 2004 Page 4 0 3.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. Should the above - referenced terms and conditions be acceptable to you, please have this letter agreement executed by the appropriate officer of the Society and return the same to my attention at the above - referenced address on or before May 7, 2004. Thereafter, it will be presented to the City Council for consideration as noted above. If approved, the City Manager will execute the Agreement. Should you have any questions or if I may be of any assistance, please do not hesitate to contact me. Thank you for your assistance in this matter. ATTEST: (Signature) (Date) (Printed Name) (Title) ATTEST: 0 Gary W. Smith, City Clerk F:VKaren\Files \Conmcts\Heritage Socict v\ Lc acrAgreement 4 Repairs HeriugeSociecvBrown- McKay.doc Sin erely, acio Ramirez, Sr. City Attorney AGREED: THE BAY AREA HERITAGE SOCIETY OF BAYTOWN, TEXAS (Signature) (Date) (Printed Name) (Title) AGREED: CITY OF BAYTOWN Gary Jackson, City Manager (Date) • BA b. • 4Ycli$,-**()) CITY OF BAYTOWN U'•� ' 2401 MARKET P.O. BOX 424 BAYTOWN,TX. 77522-0424 (281)420-6505 FAX(281)420-6586 * legal@baytown.org IGNACIO RAMIREZ,SR. JULIE K.ESCALANTE KAREN L.HORNER CITY ATTORNEY ASSISTANT CITY ATTORNEY FIRST ASSISTANT CITY ATTORNEY LEGAL DEPARTMENT April 30,2004 Ms. Wanda S. Mitchell The Bay Area Heritage Society of Baytown,Texas 220 W. Defee Street Baytown, TX 77520 Re: Letter Agreement Dear Ms. Mitchell: This Letter Agreement("Agreement")evidences the terms and conditions under which The Bay Area Heritage Society of Baytown,Texas(the"Society"),a Texas non-profit corporation,will perform services on behalf of the City of Baytown(the "City")should the City Council approve this Agreement at its meeting to be held on the 13th of May, 2004. I. Society's Obligations 1.01 Society's Services. The Society covenants and agrees that it will perform historical restoration and preservation services for tourists and the community of the Brown-McKay House located at the Republic of Texas Plaza and shall be responsible for all costs associated therewith,including,but not limited to, all restoration,maintenance,upkeep and utilities expenses at the site along with all management and supervision responsibilities of the related programs and activities. 1.02 Society's Compliance. The Society agrees to comply with all laws, rules or regulations of applicable governmental authorities in performing the services required herein. Such laws,rules and regulations include strict compliance with all building codes of the City of Baytown. 1.03 Society's Obligations. A. Annual Budget and Reports. The Society understands that by accepting monies paid by the City pursuant to Article II,the Society has the obligation to submit its annual budget to the City Council for approval and shall make quarterly reports to the City Council regarding the expenditures made with the funds paid by the City in accordance with Article II hereof. B. Duty with Respect to Funds Received. Any fee received by the Society pursuant to this Agreement shall be deposited in a separate account and may not be commingled with other funds. Additionally,by receiving the monies pursuant to Article II hereof,the Society has a fiduciary duty to the City with respect to such monies. C. Financial Records. The Society shall maintain complete and accurate financial records of the expenditure of funds provided by the City pursuant to this Agreement and,on request of the City Council or any other person, shall make the records available for inspection and review within five days of receipt of a request. • j I • • • Bay Area Heritage Society April 30,2004 Page 2 II. City's Obligation 2.01 City's Sole Obligation. The Society and the City expressly understand and agree that the only obligation of the City under this Agreement is to pay a one-time fee not to exceed FIVE THOUSAND AND NO/100 DOLLARS($5,000.00)to the Society for renovations to the Brown-McKay House,which is located at the Republic of Texas Plaza at the Gray Sports Complex. The parties understand and agree that the fee will not be greater than the actual expense incurred by the Society in renovating the Brown-McKay House. 2.02 Due Date. The City shall pay the fee specified in Section 2.01 on or before the thirtieth (30th)day after receiving a proper invoice therefor. However,the parties agree that such invoice shall not be submitted to the City until the restoration is completed and approved by the City. III. Miscellaneous Provisions 3.01 Termination. Any breach of any provision of this Agreement shall constitute an Event of Default for which the City may,and the Society explicitly recognizes the City's right to,terminate this Agreement by giving written notice to the Society. Additionally,it is understood that the City may terminate this Agreement at any time without cause by giving written notice of such termination to the Society. Termination shall take effect immediately on receipt thereof by the Society. 3.02 Address and Notice. Unless otherwise provided in this Agreement, any notice,communication,request, reply or advice(herein severally and collectively for convenience,called"Notice")herein provided or permitted to be given, made or accepted by any party to the other must be in writing and may be given or served by depositing the same in the United States mail,postpaid and registered or certified and addressed to the party to be notified,with return receipt requested,or by delivering the same to an officer of such party,or by prepaid telegram,when appropriate,addressed to the party to be notified. Notice deposited in the mail in the manner hereinabove described shall be conclusively deemed to be effective,unless otherwise stated in this Agreement, from and after the expiration of three(3)days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purpose of notice,the address of the parties shall,until changed as hereinafter provided,be as follows: If to the City,to City of Baytown Attn: City Manager P.O. Box 424 Baytown,TX 77522-0424 If to the Society,to The Bay Area Heritage Society of Baytown, Texas Attn: Registered Agent 220 W. Defee Street Baytown,TX 77520 3.03 Assignability. This Agreement shall bind and benefit the respective parties and their legal successors and shall not be assignable in whole or in part by any party without first obtaining written consent of the other party. 3.04 No Additional Waiver Implied. The failure of any party hereto to insist,in any one or more instances,upon performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver or • Bay Area Heritage Society • • April 30,2004 Page 3 relinquishment of the future performance of any such terms, covenants or conditions by any other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. 3.05 Modification. Except as otherwise provided herein,this Agreement shall be subject to change or modification only with the mutual written consent of the parties hereto. 3.06 Independent Contractor. The relationship of the Society to the City shall be that of an independent contractor. The City shall have no authority to direct the day-to-day activities of any of the Society's personnel decisions,and shall have no other rights to internal working papers or other information or data than the City would have to any other independent contractor providing specific services. 3.07 Release. 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 contract or agreement,any charter,or applicable state law.Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. The Society assumes full responsibility for its services performed hereunder and hereby releases,relinquishes and discharges the City,its officers,agents,and employees from all claims,demands,and causes of action of every kind and character,including the cost of defense thereof,for any injury to or death of any person(whether they be either of the parties hereto,their employees, or other third parties)and any loss of or damage to property(whether the property be that of either of the parties hereto,their employees,or other third parties)that is caused by or alleged to be caused by,arising out of,or in connection with the Society's work to be performed hereunder. This release shall apply with respect to the Society's services regardless of whether said claims,demands,and causes of action are covered in whole or in part by insurance. 3.08 Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. The City shall never be subject to any liability in damages to any patron or contractor of the Society for any failure to perform its obligations under this Agreement. 3.09 Captions. The captions appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision hereof,or in connection with the duties,obligations or liabilities of the respective parties hereto or in ascertaining intent,if any question of intent should arise. 3.10 Severability. The provisions of this Agreement are severable,and if any provision or part of this Agreement or its application thereto to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such provisions or part of this Agreement to other persons or circumstances shall not be affected thereby. 3.11 Merger.This Agreement embodies the entire understanding and agreement between the parties as to the services to be provided herein,and there are no prior effective representations,warranties or agreements between the parties. 3.12 Construction of Agreement. 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. 3.13 Term. This Agreement shall be in force and effect from the date of execution hereof by the City Manager until the expiration of one year,unless earlier terminated in accordance with Section 3.01. 3.14 Choice of Law and Venue. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City,regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown,Harris County,Texas. 3.15 Authority. The officers executing this Agreement on behalf of the parties hereby represents that such officers have full authority to execute this Agreement and to bind the party he/she represents. ., Bay. • • Area Heritage Society • r April 30,2004 Page 4 3.16 Agreement Read. The parties acknowledge that they have read,understand and intend to be bound by the terms and conditions of this Agreement. Should the above-referenced terms and conditions be acceptable to you,please have this letter agreement executed by the appropriate officer of the Society and return the same to my attention at the above-referenced address on or before May 7, 2004. Thereafter,it will be presented to the City Council for consideration as noted above. If approved,the City Manager will execute the Agreement. Should you have any questions or if I may be of any assistance,please do not hesitate to contact me. Thank you for your assistance in this matter. Sin erely, .11-me-.31--..---- acio Ramirez, Sr. City Attorney AGREED: THE BAY AREA HERITAGE SOCIETY OF BAYTOWN,TEXAS R,,,,..... iIGl , Jr ii D�`''/ (Signature) (Date) RA /YION,T f-lt 1 (Printed Name) P,PE51 DENT (Title) A TEST: r (Signature) (Date) WA w1 A EL (Printed Name) A M v-5EV M ])I REC-TD RJ (Title) AGREED: CI B TO ' . s=/4-0V �,, Gary Jack ,City Manager (Date) AT/t • _ l G W. Stnth, City Clerk F:\Karen\Files\Contract;\Heritage Society\LetterAgreement4Repa rsHeritageSocietyBrown-McKay.doc