Ordinance No. 9,998ORDINANCE NO. 9995
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT
WITH JOHN M. FULTZ, COURT APPOINTED RECEIVER FOR BAY OAKS
HARBOR WATER AND SEWER SYSTEM, AND THE BAY OAKS HARBOR
PROPERTY OWNERS' ASSOCIATION RELATING TO AN
INVESTIGATIVE STUDY`- OF THE WATER AND WASTEWATER
SYSTEMS IN BAY OAKS HARBOR SUBDIVISION, SECTION I; 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 of the City of Baytown to execute and the City Clerk to attest to an
agreement with John M. Fultz, Court Appointed Receiver for Bay Oaks Harbor Water and Sewer
System, and the Bay Oaks Harbor Property Owners' Association relating to an investigative
study of the water and wastewater systems in Bay Oaks Harbor Subdivision, Section I. A copy
of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents
and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 10th day of February, 2005.
CALVIN MUNDINGER, M
ATTEST:
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,�R'�LW MIT�q .S _,Ci tyClerk
APPROVED AS TO FORM:
e(SAACIO RAMIREZ, SR. ity Attorney
® RAKaren\Files \City Council \Ordinances\2005 \February 10\ Fultz& BayOaksHarborAgreement4JnvestigativeStudy .doc
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AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This Agreement is made and entered into, and executed by and between, John M. Fultz, Court
Appointed Receiver for Bay Oaks Harbor Water and Sewer System, hereinafter referred to as the
"Receiver," the Bay Oaks Harbor Property Owners' Association, a Texas non - profit corporation,
hereinafter referred to as the "POA," and the City of Baytown, Harris and Chambers Counties, Texas, a
political subdivision of the State of Texas, acting by and through the governing body, hereinafter referred
to as the "City."
In consideration of the premises and the covenants hereinafter set forth, the City, POA and the
Receiver agree as follows:
I.
City's Responsibilities
1.01 Contingent upon receipt of the payment specified in Article III hereof, the City hereby agrees to
perform or cause to be performed an investigative study of the water and wastewater systems in
Bay Oaks Harbor Subdivision, Section I. Such study shall be the property of the City; however,
after the study has been finally accepted and approved by the City, the City shall tender one copy
of such study to the Receiver and one copy of such study to the POA.
1.02 Within thirty (30) days of the acceptance of the investigative study by the City, the City shall
refund to the POA the portion of the amount it paid pursuant to Article III hereof which is in
excess of the cost to the City of the investigative study, if any.
II.
Receiver's Responsibilities
2.01 The Receiver agrees to fully cooperate with the City in the performance of its responsibilities
enumerated in Article I hereinabove.
2.02 The Receiver hereby represents and warrants that it has not conveyed, transferred, assigned,
pledged or otherwise encumbered any of its rights in the Improvements and has full authority and
power to make all agreements contained herein.
2.03 During the term of this Agreement, the Receiver hereby grants to the City the right of ingress and
egress to and from the Improvements for the purpose of performing the investigative study.
ID.
POA's Responsibilities
3.01 The POA understands and agrees that it will be responsible for the cost of the investigative study
• to be performed by the City pursuant to Section 1.01 up to a maximum amount of FIFTY
THOUSAND AND NO 1100 DOLLARS (550,000.00). As such, within ten (10) days of the
Aereernent, Page t
EMTf A
0
3.02
effective date of this Agreement, the POA shall tender such amount in full to the City. The POA
will be entitled to a refund of a portion of the amount tendered only if the cost to the City of the
investigative study is less than FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00).
THE POA AGREES THAT THE POA SHALL INDEIVINIFY, HOLD
HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES AS WELL AS THE RECEIVER. (COLLECTIVELY
REFERRED TO IN THIS ARTICLE AS THE "INDEMNITEES "), 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 ANY AND ALL DAMAGES TO THE STREETS, ALLEYS,
AND SIDEWALKS AND WATER AND /OR SEWER SYSTEMS,
INCLUDING ALL APPURTENANCES RELATED THERETO
(COLLECTIVELY REFERRED TO AS THE "IMPROVEMENTS "),
ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE
PERFORMED BY THE INDEMNITEES PURSUANT TO THIS
AGREEMENT, WHERE SUCH DAMAGES ARE CAUSED BY THE
SOLE OR JOINT NEGLIGENCE OF THE INDEMNITEES AND ANY
OTHER PERSON OR ENTITY AND /OR BY THE JOINT OR SOLE
NEGLIGENCE OF THE POA. IT IS THE EXPRESSED INTENTION OF
THE PARTIES HERETO, THE POA, THE RECEIVER AND THE CITY,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY THE POA TO INDEMNIFY AND PROTECT THE
INDEMNITEES FROM THE CONSEQUENCES OF (I) THE
INDEMNITEES' NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE
SOLE OR A CONCURRING CAUSE OF THE RESULTING DAMAGE
TO THE IMPROVEMENTS AND /OR (II) THE POA'S JOINT AND /OR
SOLE NEGLIGENCE. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF
ANY OF THE ABOVE, THE POA FURTHER AGREES AND
COVENANTS THAT THE POA SHALL DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY
AND THE RECEIVER.
The indemnity provided hereinabove shall survive the termination and/or expiration of this
Permit.
3.03 The POA hereby represents and warrants that it has not conveyed, transferred, assigned, pledged
or otherwise encumbered any of its rights in the Improvements and has full authority and power
to make and honor all agreements contained herein.
Agreement, Page 2
0 3.04 During the term of this Agreement, the POA hereby grants to the City the right of ingress and
egress to and from the Improvements for the purpose of performing the investigative study.
3.05 Throughout the term of this Agreement, the POA 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 investigative study required herein. The
POA's insurance coverage shall be primary insurance with respect to the City, its officers, agents
and employees, and the Receiver. Any insurance or self - insurance maintained by the City, its
officials, agents and employees shall be considered in excess of the POA's insurance and shall
not contribute to it.
The following insurance shall be required under this Agreement and shall meet or exceed the
minimum requirements set forth herein:
■ Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 0l 10 93
• No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
Prior to any work being performed on the site, the POA shall file with the City a valid Certificate
of Insurance and endorsements acceptable to the City. Such Certificate 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 City via certified mail,
return receipt requested.
The following are general requirements applicable to the required policy:
➢ AM Best Rating of B +; VII or better.
➢ The insurance carrier must be licensed and admitted to do business in State of Texas.
9 The liability policy must be on occurrence form.
➢ The policy shall be endorsed to state that coverage shall not be suspended, voided, canceled
or reduced in coverage or in limits except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given to the City.
9 The City, its officers, agents and employees are to be added as Additional Insureds to the
liability policy.
9 Upon request of and without cost to City of Baytown, a certified copy of the insurance policy
and/or the certificate 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 any work being performed at the site.
➢ 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.
IV.
Term
4.01 The term of this Agreement shall commence upon the signing of this Agreement by the City
Manager and shall remain in full force and effect, unless terminated in accordance with Section
4.02, until the investigative study is completed and accepted by the City. Nothing contained in
Agreement, Page 3
® this section shall be construed, however, to terminate Sections 3.02, 5.01, and 5.02 of this
Agreement, as such provisions shall remain in full force and effect after the termination and/or
expiration of this Agreement.
4.02 This Agreement, with the exception of those provisions not subject to termination, may be
terminated by either party hereto with or without cause upon giving at least 10 days' written
notice of such termination. Upon termination, the City shall cease performing or causing to be
performed the investigative study and the POA shall be responsible for all costs incurred by the
City in the performance of the study to the date of termination along.with all other termination
charges, which may be contained in the investigative study agreement.
V.
General Provisions
5.01 The parties understand and agree that the City has never accepted the utilities or any other
purported dedication contained in the plat of the subdivision or any other recorded instrument;
and the parties agree that nothing contained herein or any work performed pursuant to this
Agreement or any previous entry or use of the parts purported to be dedicated shall be deemed
acceptance of or appropriation of the dedicated parts by formal acceptance, entry, use or
improvement.
5.02 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. Both the Receiver and the POA
hereby release, relinquish and discharge 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 services to be performed
hereunder. This release shall apply with respect to the services to be performed or caused to be
performed by the City regardless of whether said claims, demands, and causes of action are
covered in whole or in part by insurance.
5.03 Notwithstanding anything to the contrary contained in this Agreement, the City, the POA and the
Receiver hereby agree that no claim or dispute between the City and the Receiver arising out of
or relating to this Agreement shall be decided by any arbitration proceeding including, without
limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1 - 14), or any
applicable State arbitration statute, including, but not limited to, the Texas General Arbitration
Act, provided that in the event that the City is subjected to an arbitration proceeding
notwithstanding this provision, the Receiver consents to be joined in the arbitration proceeding if
the Receiver's presence is required or requested by the City of complete relief to be recorded in
the arbitration proceeding.
5.04 This Agreement shall be construed in accordance with, and governed by, the laws of the State of
Texas. Venue shall lie exclusively in Hams County, Texas.
9 5.05 In the event any one or more of the sections, provisions or clauses contained herein shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
Agreement, Page 4
• unenforceability shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
5.06 In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for
or against any party hereto on the basis that such party did or did not author the same.
5.07 Failure of any party hereto to insist on the strict performance of any of the agreements herein or
to exercise any rights or remedies accruing thereunder upon default or failure of performance
shall not be considered a waiver of the right to insist on and to enforce, by an appropriate remedy,
strict compliance with any other obligation hereunder or to exercise any right or remedy
occurring as a result of any future default or failure of performance.
5.08 No right or remedy granted herein or reserved to the City is exclusive of any other right or
remedy herein by law or equity provided or permitted, but each shall be cumulative of every other
right or remedy given hereunder.
5.09 The Receiver and the POA shall not sell, assign, or transfer any of their rights or obligations
under this Agreement in whole or in part without prior written prior consent of the City.
5.10 This Agreement shall not be modified or amended except by a written instrument executed by the
Receiver, the POA and the City.
5.11 This Agreement may be executed in triplicate original counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts shall together constitute but one
and the same instrument.
5.12 The persons executing this Agreement on behalf of the City, the POA and the Receiver hereby
represents that such officers have full authority to execute this Agreement and to bind the parties
each represents.
IN WITNESS WHEREOF, the City and the Receiver has executed this Agreement effective as of
the day of , 2005.
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, SR. ty Attorney
Agreement, Page 5
CITY OF BAYTOWN
GARY JACKSON, City Manager
FE8- 01-2005 MON 10:06 AM
02/04/2005 10:36 2814205891
CITY OF BAYTOWN
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AGREED AND ACCEPTED this the day of _F� ��''�� 2005.
RECENER
IM. FtTLTZ, Recei
Y' OAKS ffikRBOR
.TER AND SEWER SYSTEM
STAVE OF TEXAS
COUNTY OF grW6
F. 002
FACE 02/02
Before me, Ty-a L-'Dow"6 , the undersigned notary public, on this day personally
appeared JOM M. FULTZ, Meceiver of Bay Oaks Harbor Water and Sewer System, known to me to be
the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he
executed dnt instrument for the Purposes and consideration therein expressed_
.Given under my hand and seal of office this 7 day of FR—b tLo -r'-S , 2005.
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AGREED AND ACCEPTED this the 401 day of Pebruail , 2005.
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BAY OAKS HARBOR PROPERTY
OWNERS' ASSOCIATION
STATE OF TEXAS
COUNTY OF HARRIS
Before me, Sylv:.a Arm Aguilar__, the undersigned notary public, on this day personauy
appeared- _ __jack_ Patterson ,the Sec./Treas. of Bay Oaks Harbor Property
Owners' A,ssociadon, known to me to be the person whose name is subscribed to the foregoing
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® instrument, and acknowledged to me that he executed that instrument for the purposes and consideration
therein expressed.
Given under my hand and seal c
.►�' SYLVIA ANN AGUILAR
Notary Public, State of Texas
r My Commission Expires 10.25 -2005
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A r� eement, Page 7
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CERTIFICATION
I, GARY W. SMITH, the duly appointed and acting City Clerk of the City of Baytown,
Harris County, Texas, do hereby certify and attest that as part of my duties, I do supervise
and act as lawful custodian of the records of the City of Baytown; that the attached document
is a true and correct copy of Ordinance No. 9998
ORDINANCE NO. 9998
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLEnK TO ATTEST TO AN AGREEMENT WITH
JOHN M. FULTZ, COURT APPOINTED RECEIVER FOR BAY OAKS
HARBOR WATER AND SEWER SYSTEM, AND THE BAY OAKS HARBOR
PROPERTY OWNERS' ASSOCIATION RELATING TO AN INVESTIGATIVE
STUDY OF THE WATER AND WASTEWATER SYSTEMS IN BAY OAKS
HARBOR SUBDIVISION, SECTION I; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
Adopted by the City Council at its meeting held on February 10, 2005.
WITNESS MY HAND AND SEAL of the City on February 14, 2005.
(4/t(01122iik-
__-- Gary W. Smith, City Clerk
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