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Ordinance No. 10,052ORDINANCE NO. 10,052 AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH EXXON MOBIL CORPORATION TO CONSTRUCT A WATER LINE IN AN EXISTING 16 -FOOT UTILITY EASEMENT IN THE VICINITY OF BAYWAY DRIVE; 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 Mayor and City Clerk of the City of Baytown to execute and attest to an agreement with Exxon Mobil Corporation to construct a water line in an existing 16 -foot utility easement in the vicinity of Bayway Drive. A copy of said Agreement is attached hereto, marked 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 14th day of April, 2005. CALVIN MUNDINGER, Mayor ATTEST: . GAR;' .' SMI`I R, City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, S ity Attorney • R: \Karen \Fitts \City CounciROrdinances \2005\Aprit 14\ ExxonAgreement4WaterLinedaywayDrive .doc AGREEMENT FOR THE PURCHASE AND INSTALLATION OF A SIXTEEN -INCH WATER LINE IN THE VICINITY OF BAYWAY DRIVE THE STATE OF TEXAS § COUNTY OF HARRIS § Parties. This Agreement regarding the Purchase and Installation of a Sixteen -Inch Water Line (the "Agreement ") is made and entered into between the CITY OF BAYTOWN, TEXAS (the "CITY "), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and EXXONMOBIL REFINING & SUPPLY COMPANY, A DIVISION OF EXXON MOBIL CORPORATION, a New Jersey corporation, authorized to do business in the State of Texas ( "EXXONMOBIL "), whose address for purposes hereof is 5000 Bayway Drive, Baytown, TX 77520. WITNESSETH: I. 1.1 EXXONMOBIL's Obligations. (a) EXXONMOBIL agrees that it will at its own cost and expense, purchase, construct and install in, on, over and/or under the utility easement more specifically described hereinbelow, the following New Facilities, to -wit: a sixteen -inch (16 ") water line in the vicinity of, Bayway Drive as described in "An Engineering Study for the Relocation of the City of Baytown Waterline" prepared by Busch,: Hutchison and Associates and dated March 3, 2004 and the plans prepared by GDS Engineers dated October 22, 2004, (the "Site "), as well as any and all appurtenances thereto as are necessary for delivery of water from the CITY to the surrounding area. (b) EXXONMOBIL agrees to comply with all laws, rules or regulations of applicable governmental authorities, in order to make the line described hereinabove meet the quality standards set by such applicable governmental authorities. (c) EXXONMOBIL shall be obligated to submit plans and specifications for the construction and/or installation of the New Facilities (the "Plans and Specifications ") to the City Engineer, for approval, and/or for required revision and approval, by the City Engineer, within ten (10) days after the effective date of this Agreement, if it has not already done so at the time of execution of this Agreement. EXXONMOBIL agrees that the Plans and Specifications shall include (i) the construction and installation of a water line sixteen inches (16 ") in diameter. (d) Upon execution of this Agreement and final approval of such Plans and Specifications by the City Engineer, EXXONMOBIL shall begin the construction and/or installation of such New Facilities in accordance with the approved Plans and Specifications, and continue thereafter in a diligent manner with the construction and/or AiZreernetit for the Purchase and Installation isof a Sixteen -Inch Water Line, Page 1 X1'1 t I I installation of such New Facilities, until such work has been completed and accepted by the CITY. The CITY agrees to act in good faith to diligently issue final approval of such Plans and Specifications by the City Engineer. (e) EXXONMOBIL shall keep the City Engineer informed as to the progress of the construction and installation of such New Facilities, shall provide information regarding the construction as and when requested by the City Engineer, and shall notify the City Engineer upon completion of each segment of such work at which the City Engineer desires to make interim construction inspections. In the event that the City Engineer requests at any stage of the work, any corrections to the New Facilities and/or additions to such work, provided, however, that such additions are authorized by this Agreement as a part of the contemplated New Facilities and are considered standard and customary for projects of this type, then EXXONMOBIL shall be obligated to make such corrections and/or additions as are directed by the City Engineer within sixty (60) days after receiving such request, unless additional time is required. If additional time is required, EXXONMOBIL will notify the City Engineer of the need for additional time and the parties will, in good faith, agree upon the necessary time to make such corrections and/or additions. (f) Upon completion of the construction and/or installation of the :New Facilities, EXXONMOBIL shall request a final approval by the City Engineer of such "work and such approval shall not be withheld without -a good faith basis. The City Engineer will W . take action on EXXONMOBIL's request for final approval and notify EXXONMOBIL of such action within forty-five (45) days upon receipt of EXXONMOBIL's request for final approval. (g) EXXONMOBIL shall pay all costs and expenses of construction and/or installation of the New Facilities, including, not by way of limitation, the costs of all materials, labor and electricity used in connection with such construction and all license, permit or inspection fees that may be charged by the CITY and/or any other appropriate authority in connection with such work. (h) Immediately upon final approval of the construction of the New Facilities by the City Engineer or upon termination of this Agreement, whichever is sooner, the legal title to the New Facilities shall vest absolutely in the CITY, without the execution of any further written agreement in regard thereto between the CITY and EXXONMOBIL. Consequently, upon the expiration of the Term of this Agreement, EXXONMOBIL shall have no obligation, right or privilege to remove any part or portion of the New Facilities, unless otherwise agreed to in writing by the parties. (1) EXXONMOBIL shall convey to the CITY an easement for the property in which the New Facilities are located, which easement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Such easement shall be fully executed Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 2 by EXXONMOBIL upon execution of this Agreement and shall not be finally executed ® by the City until after the final approval of the New Facilities by the City Engineer or upon termination of this Agreement, whichever is sooner. 0) EXXONMOBIL warrants that all materials provided to the CITY under_ this Agreement shall be new and that all materials and work will be of good quality, free from faults and defects, and in conformance with this Agreement for a period of one year from acceptance by the CITY. EXXONMOBIL warrants that for equipment furnished and/or installed but not manufactured by EXXONMOBIL, EXXONMOBIL will extend the same warranty terms and conditions which EXXONMOBIL receives from the manufacturer of said equipment. All work not conforming to these requirements may be considered defective and shall be repaired and/or replaced in full compliance with this Agreement by EXXONMOBIL within sixty (60) days upon notice by the CITY. II. 2.1 Term. Subject to and upon the terms and conditions set forth herein, this Agreement shall continue in force and effect from the Effective Date (as hereafter defined) until the final completion and acceptance of the project by the CITY; at which time the New:Facilities will be conveyed to the CITY. EXXONMOBIL agrees that the project shall be finally complete on or before the 3 o day of e , 200.5. III. EXXONMOBIL covenants and agrees with the CITY as follows, to -wit: 3.1 Payments by EXXONMOBIL. To pay EXXONMOBIL's officers, agents, employees, and/or contractors who are charged with the obligation of purchasing all or any portion of the New Facilities, and installing the same ( "Contractor ") in a timely manner, consistent with the agreement and the Plans and Specifications. 3.2 Damages Caused by EXXONMOBIL. At its own cost and expense, to repair or replace any damage or injury done to the New Facilities during the construction of the same, or any part thereof, caused by EXXONMOBIL or EXXONMOBIL's agents, employees, invitees, contractors, or subcontractors, and to make, purchase, construct and/or install all improvements, repairs or replacements required of EXXONMOBIL by this Agreement. If the City Manager of the City of Baytown (the "City Manager "), in good faith, determines that the New Facilities are not being repaired and /or replaced or constructed in accordance with the terms of this Agreement, the City Manager shall so notify EXXONMOBIL in writing and request EXXONMOBIL to perform the identified work within thirty (30) days and continue diligently therewith until completion. If more than thirty (30) days are reasonably required as determined Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 3 by the City Engineer to complete the making, construction and/or installation of such improvements, repairs or replacements, then the CITY shall extend such period. If the condition persists after the expiration of sixty (60) days from the date of the notice or, if applicable, from the expiration of any extension granted, and no condition of force majeure exists and the City Manager, in good faith, determines that EXXONMOBIL has not prosecuted the work required herein to completion in accordance with this Agreement, the City Manager may declare EXXONMOBIL in default and thirty (30) days after having provided written notice to EXXONMOBIL of such default seek any appropriate remedy which may be available to the CITY, including, but not limited to, making such improvements, repairs or replacements at EXXONMOBIL's sole cost and expense. It is understood and agreed that if such repairs, improvements or replacements are made by the CITY in good faith and in accordance with this Agreement, EXXONMOBIL shall pay the CITY for the costs of the same within thirty (30) days after receiving an invoice therefore. 3.3 Assiiznment. In the event that EXXONMOBIL should desire to assign this Agreement or any part thereof, EXXONMOBIL understands that no such assignment of this Agreement or any part thereof shall be effective, without the express, prior written consent of the CITY, which consent may not be unreasonably withheld by the CITY. Notwithstanding the execution of any subsequent assignment of this Agreement by EXXON -MOBIL to any other person or entity who may have been approved by. the CITY to participate in any such assignment, such assignment shall in no way release EXXONMOBIL .of any of its liabilities,. obligations or indemnities made herein by EXXONMOBIL to the CITY, uriless*the CITY elects to':do so by execution of a subsequent written release of EXXONMOBIL of the terms and provisions of this Agreement, after request therefor to the CITY by EXXONMOBIL. The execution of any subsequent request release may not be unreasonably withheld by the CITY. 3.4 Alterations Modifications Changes. Not to permit any alterations, modifications, or changes in the Plans and Specifications for the construction and/or installation of the New Facilities without first obtaining the written consent of the CITY, which consent may not be unreasonably withheld by the CITY. However, any and all such alterations, modifications or changes, when finally approved by the City Engineer and accepted by the CITY, shall at once become the property of the CITY and shall be surrendered to the CITY upon the expiration of this Agreement. 3.5 Laws and Regulations. To comply with all laws, ordinances, orders, rules and regulations (state, federal, municipal and other agencies or bodies having any jurisdiction thereof) relating to the purchase, use, construction, and/or installation of the New Facilities. 3.6 Entry for Inspection. To permit the CITY or its agents or representatives to enter into and upon any part of the Site to inspect same at any reasonable hour with forty-eight (48) hours' written or verbal notice to EXXONMOBIL prior to such inspection. CITY agrees that, as part of this right of entry, it and its employees, agents, contractors and subcontractors will comply with all safety, plant protection and traffic rules and regulations and all amendments that Aereement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 4 may be made thereto (provided that the CITY receives notice of any such amendments) ® applicable to EXXONMOBIL's refinery or chemical plant properties to independent contractors and their employees and other non- EXXONMOBIL personnel. Current copies of such rules and regulations shall be available to the CITY at EXXONMOBIL's Mechanical Department in Baytown.. 3.7 Nuisance. To ensure that at all times during the term of this Agreement, the Site as well as all areas in any way or manner affected by the construction and/or installation of the New Facilities and the operation of EXXONMOBIL's business or that of its contractors or subcontractors is conducted in such manner as not to create any nuisance, in, on or around the Site. IV. 4.1 Indemnity. In consideration of the execution of this Agreement by the CITY, EXXONMOBIL agrees to RELEASE, INDEMNIFY, HOLD HARMLESS, and DEFEND the CITY, its officers agents and employees (collectively referred to in this Article IV as the . "CITY ") from- any Claim (including all expenses.of litigation, court costs; and'attorneys' fees and the cost of.any Remediation required by any governmental authority),, asserted: by anyone or . more of the following: (i) any governmental authority, including, but not limited: to, the: Texas Commission on Environmental Quality, or the United States Environmental Protection Agency; and any successor agencies; or (ii) by any adjacent bn non - adjacent property. owner; or (iii) .by any other third -party or parties; in each case which in any way arises out of or occurs,. whether directly or indirectly, as a result of EXXONMOBIL's ownership, operation, use, repair, removal, control, construction and/or installation of the Site or the New Facilities; said agreement of EXXONMOBIL in regard to such matter to be controlled by the following specific terms and provisions of such Indemnity, to -wit: (i) The following terms shall have the following meanings in this Agreement: (a) " Remediation" shall mean an action that a federal or state governmental agency mandates, or would mandate if they were to issue an order, to remediate a condition of any part or portion of the Site (and any off -site condition directly related thereto) that exists, as specified in and required by "Environmental Laws" that are applicable to such Site. (b) "Environmental Laws" shall mean any and all laws, statutes, regulations, rules or orders of any state or federal governmental agency pertaining to the environment whose purpose is to protect the environment or wildlife and that are now or hereafter in effect in any and all jurisdictions in which the Site is located, including, without limitation, the Clean Air Act, as amended ( "CAA "); the Federal Water Pollution Control Agreement for the Purchase and Installation of a Sixteen -Inch Water Line, Page 5 Act, as amended ( "CWA "), the Rivers and Harbors Act of 1899, as • amended; the ' Safe Drinking Water Act, as amended ( "SDWA "); the Comprehensive Environmental Response, Compensation and Liability Act, as amended ( "CERCLA "); the Superfund Amendments and Reauthorization Act of 1986, as amended ( "SARA "); the Resource Conservation and Recovery Act, as amended ( "RCRA "); the Hazardous and Solid Waste Amendments Act of 1984, as amended; the Toxic Substances Control Act, as amended ( "TSCA "); the Hazardous Materials Transportation Act, as amended; and the Oil pollution Act of 1990 (" OPA "). (c) "Remediation Costs" shall mean direct costs incurred for Remediation, but shall exclude any costs incurred by EXXONMOBIL in due diligence studies conducted by EXXONMOBIL in regard to the Site. (d) "Claim" and "Claims" shall mean all liability, costs, expenses, claims, demands, fines, penalties, causes of action or other obligation of whatever nature, whether under express or implied contract, at common law or under any applicable law, rule or.regulation, including, without limitation,. . applicable Environmental .Laws. (ii) Upon execution of this Agreement;: EXXONMOBIL agrees, as between it and the 4::.. CITY, :to be responsible for -all :liabilities (including any Remediation Costs - attributable thereto) arising from any environmental conditions on the Site, whether discovered before or after the execution of this Agreement. EXXONMOBIL shall be responsible for performing Remediation of or otherwise discharging all liabilities arising from environmental conditions of the Site. (iii) EXXONMOBIL has made diligent inspection of the Site and the proposed construction and hereby acknowledges that it has taken the results of such inspection into account in its decision to assume all environmental liabilities related to the construction in, on and under the Site. (iv) Throughout the term of this Agreement, EXXONMOBIL and its contractor shall comply with prudent safety procedures, and EXXONMOBIL assumes responsibility for the safety of personnel and property of EXXONMOBIL. EXXONMOBIL agrees to exercise precautions and conduct all actions at or on the Site in a way that will assure the safety of persons and property. (v) IT IS THE EXPRESS INTENTION OF THE PARTIES, BOTH EXXONMOBIL AND THE CITY, THAT THIS RELEASE, INDEMNITY, HOLD HARMLESS PROVISION AND THE OBLIGATION TO DEFEND SHALL APPLY TO CLAIMS THAT MAY ARISE IN WHOLE OR IN Aizreement for the Purchase and Installation of a Sixteen -Inch Water Line, Page 6 PART FROM THE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL • MISCONDUCT, OR STRICT LIABILITY OF EXXONMOBIL, ITS OFFICERS, AGENTS AND /OR EMPLOYEES. WHERE THAT NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IS A CONCURRING CAUSE OF THE INJURY, DEATH, OR DAMAGE, EXXONMOBIL'S DUTY OF INDEMNIFICATION SHALL BE IN PROPORTION TO EXXONMOBIL'S, IT OFFICERS', AGENTS' AND /OR EMPLOYEES' ALLOCABLE SHARE OF JOINT NEGLIGENCE OR WILLFUL MISCONDUCT. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS SOLELY FROM THE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR STRICT LIABILITY OF THE CITY, ITS OFFICERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVE, SUCCESSOR AND ASSIGNS UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. (vi) If any provision of this Section IV, or any portions thereof, should be deemed invalid or unenforceable pursuant to a final determination of any court of competent jurisdiction or as a result of future laws, such determination or action shall. be construed so as not to affect the validity or effect of any other portion or portions of this Section IV which are not held to be invalid or unenforceable. (vii) The foregoing indemnity shall be subject to EXXONMOBIL being given Reasonable Written Notice (as defined below) from the CITY directing EXXONMOBIL to assume the defense of the claim and any action brought on the claim and to pay all reasonable expenses incurred as a result of the claim. "Reasonable Written Notice" shall require the CITY to notify EXXONMOBIL within thirty (30) days of the CITY's discovery of the commencement of any formal legal proceeding, whether judicial, administrative or quasi-judicial, by or against any person or entity as to which indemnity is to be sought hereunder. Notice shall be given in writing subject to the requirements of paragraph 5.7. In the event that any action or proceeding is brought against the CITY from which the CITY is indemnified, EXXONMOBIL further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the CITY. In the event that EXXONMOBIL fails to respond to a request for indemnification, commence defense of any claim, and/or assume its responsibilities covered by this indemnity, the CITY shall have the right to respond to, negotiate, settle, or defend such claim and any such settlement shall be within the indemnity herein provided. Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 7 (viii) The indemnity provided for in this Article IV shall survive the termination or • expiration of this Agreement and may be asserted at any time at the sole discretion of the CITY. (ix) 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 Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive CITY'S sovereign immunity. EXXONMOBIL assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges CITY, 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 EXXONMOBIL's work to be performed hereunder. This release shall apply with respect to EXXONMOBIL's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. (x) EXXONMOBIL REPRESENTS TO THE CITY THAT EXXONMOBIL HAS KNOWLEDGE AND EXPERIENCE IN THE CONSTRUCTION AND OVERSIGHT OF THE CONSTRUCTION AND INSTALLATION OF THE - NEW FACILITIES, AND THAT EXXONMOBIL HAS EVALUATED THE MERITS AND RISKS OF CONSTRUCTING THE NEW FACILITIES ON THE SITE AND HAS FORMED AN OPINION BASED SOLELY UPON EXXONMOBIL'S KNOWLEDGE AND EXPERIENCE AND NOT UPON ANY REPRESENTATIONS OR WARRANTIES BY THE CITY. (xi) EXXONMOBIL further represents to the CITY that it is a legal entity validly existing and in good standing under the laws of the State of Texas and is duly qualified to transact business in all jurisdictions wherein the nature of its business or ownership of its assets requires such qualification. (xii) EXXONMOBIL further represents to the CITY that it has all requisite legal power and authority to enter into this Indemnity, this Agreement and all other documents or Indemnity contemplated hereby, and to perform its other obligations under this Agreement. To the best of EXXONMOBIL's knowledge, the consummation of transaction contemplated by this Agreement and Indemnity will not violate, constitute a default under, or be in conflict with (a) any provision of its charter, bylaws or governing documents; (b) any agreement or instrument to which it is a party or by which it is bound; or (c) any judgment, order or decree which is applicable to EXXONMOBIL. The execution, delivery and performance of this Agreement, this indemnity and the transactions contemplated hereby, have been duly and validly authorized by all requisite action on the part of Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 8 EXXONMOBIL, and EXXONMOBIL shall have, from and after the date of execution of this Agreement, full right, power and authority to perform all obligations required herein. This Indemnity has been duly executed and delivered on behalf of EXXONMOBIL, and all documents and instruments required under this Indemnity to be duly executed and delivered by EXXONMOBIL, shall be duly authorized, executed and delivered at the specified time. (xiii) EXXONMOBIL further represents to the CITY that this Indemnity and this Agreement and all documents and instruments required hereunder to be executed and delivered by EXXONMOBIL constitute legal, valid and binding obligations of EXXONMOBIL, enforceable against EXXONMOBIL in accordance with their respective terms. (xiv) Neither this Agreement nor any document executed or delivered in connection with this Agreement, nor any provision of or performance under any of them, shall constitute or be construed as a finding or serve as evidence of, an admission or acknowledgment of any liability, fault, or past or present wrongdoing, or violation of any law, rule, regulation or policy, by either EXXONMOBIL or the CITY, or their respective officers, directors, employees, Council Members, Mayor, attorneys or agents. (xv) . No provision :of this Agreement or any ,document executed or delivered pursuant to or in connection with this Agreements or the performance of any obligation in connection with any such provisions hereof, shall be interpreted or construed to create any rights of any kind or nature whatsoever in any person or entity not a party hereto. 1� EXXONMOBIL and the CITY mutually covenant and agree as follows: 5.1 Damage by Fire, Explosion or Other Cause. In the event of damage by fire, explosion or any other cause to the Site or the New Facilities prior to the conveyance of the New Facilities to the CITY, EXXONMOBIL shall have the obligation to repair and/or replace the damages caused by such fire, explosion or other cause, at its sole costs and expense. 5.2 Alteration of Agreement. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 5.3 Assignment or Sale by CITY. The CITY shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder, and upon such transferee's assuming Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 9 in writing all obligations of the CITY hereunder, no further liability or obligation shall thereafter • accrue against CITY hereunder. 5.4 Default by EXXONMOBIL. The CITY shall have the right to declare EXXONMOBIL in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if EXXONMOBIL: (a) Defaults in the performance of any other obligation imposed upon EXXONMOBIL hereunder and does not cure the default within fifteen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given EXXONMOBIL (or, if the CITY in its reasonable discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if EXXONMOBIL does not commence curative work within the fifteen (15) day period and prosecute the work to completion with diligence), or (b) Makes any assignment without the written approval of the CITY, or (c) Abandons -the construction and/or installation during the term of this . Agreement, or any extension hereof. Should the CITY terminate this Agreement for cause, EXXONMOBIL shall forthwith repay the CITY all monies which the CITY expended in furtherance of this Agreement and any other damages, whether in law or equity to which the CITY may be entitled. 5.5 Non- Waiver. Failure of the CITY to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 10 5.6 Notices. All notices required or permitted to be given hereunder may be given by • letter sent via registered or certified mail, return receipt requested, telegram, or any other form of written communication and shall be deemed to be duly served and given for all purposes: (a) To the CITY when received at: City of Baytown Attn: City Manager P.O. Box 424 Baytown, Texas 77522 Fax: 281- 420 -6586 (b) To EXXONMOBIL when received at EXXONMOBIL's office: EXXONMOBIL REFINING & SUPPLY COMPANY,BAYTOWN REFINERY. Attn: Refinery Manager 5000 Bayway Drive Baytown, Texas 77520 Fax: 262- 313 -3890 as the case may be. Any party may change the address for the giving of notices to it by giving due notice ..of. the .new address to the -other parties, provided that the new address must .be at a *... place in the United States where the mail and -either mailgrams or '.telegrams or similar communications are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the mailing of the same to the above - referenced address. 5.7 Independent Contractor. EXXONMOBIL as an independent contractor covenants and agrees to supply all materials and equipment and perform services as detailed herein in accordance with this Agreement. EXXONMOBIL shall have ultimate control over the execution of the work under this Agreement. It shall be the responsibility of EXXONMOBIL to furnish a completed work product that meets the requirements of the CITY. 5.8 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successor, legal representatives and assigns of the CITY, and shall be binding upon and inure to the benefit of EXXONMOBIL, its successors and, to the extent assignment may be approved by the CITY hereunder and/or not required to be approved by the CITY by the terms and provisions hereof, upon and for the benefit of EXXONMOBIL's assigns. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no way to be construed as a part of this Agreement or as a limitation on the scope of the particular sections to which they refer. Agreement for the Purchase and Installation 40 of a Sixteen -Inch Water Line, Page 11 5.9 Remedies Cumulative. All rights and remedies of the CITY and/or EXXONMOBIL • under this Agreement, shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. 5.10 Entire Agreement. It is expressly agreed by the CITY and EXXONMOBIL, as a material consideration for the execution of this Agreement by each of such parties, that this Agreement, with any specific references to written extrinsic documents, is the entire agreement of the parties; that there are, and were, no verbal representations, warranties, understandings, stipulations, agreements or promises pertaining to this Agreement, or the expressly mentioned written extrinsic documents, not incorporated in writing in this Agreement. 5.11 Venue. Both parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston, Harris County, Division. 5.12 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and EXXONMOBIL hereby agree that no claim or dispute between the CITY and EXXONMOBIL 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. Sections 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, EXXON MOBIL. consents to be joined in the arbitration proceeding if EXXONMOBIL's presence is required or requested by the CITY of complete relief to be recorded in the arbitration proceeding. 5.13 Severability. All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 5.14 Construction of Agreement. 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. 5.15 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 5.16 Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he represents. 5.17 Multiple Originals. It is understood and agreed that this Agreement may be AP reement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 12 executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 5.18 Force Majeure. Neither party shall be considered in default of its obligations or held liable for failure to perform this Agreement when prevented by any cause reasonably beyond its control including, but not limited to, accident, explosion, fire, storm, flood, revolution, hostilities, civil commotions, or by a strike, lockout, stoppage or restraint of labor or by breakdown of machinery or equipment in or about the Site, acts of God or acts of government. The party claiming that an event of force majeure has arisen shall immediately notify the other party. If notice is given orally, it shall be confirmed in writing within seventy - two (72) hours of the event. A party claiming that a force majeure prevented it from performing under this Agreement shall be granted an extension of time to cure the default, which shall in no instance exceed the time actually lost by the party because of the event, IN TESTIMONY WHEREOF, the parties hereto have executed this Agreement effective as of the day of 12005. CITY OF BAYTOWN, TEXAS GARY.JACKSON, City Manager ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 13 • EXXONMOBIL REFINING & SUPPLY COMPANY, A DIVISION OF EXXON MOBIL CORPORATION By: , Signature Printed Name ale STATE OF TEXAS § COUNTY OF HARRIS § Before me, — L 2fbs the undersi ned notary publib,: on this day personally appeared Cj� r,s W . �xiCkSm the of . EXXON MOBIL CORPORATION known to me (or proved t me on, the oath' of or through his/her 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 }) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this g ~ day of art 2005. otary Public in and for the State of i- A. Awwv - k---.,.---Notary Janet W. Fletcher i Texas Public, State of Texas ° My Commission Expires '`'a� "' JULY il, 2Q45 ' My commission expires: RAKaren\Files \Contracts\Exxon Waterline Replacement on Bayway \Waterline Agreement FinalClean.doc Agreement for the Purchase and Installation • of a Sixteen -Inch Water Line, Page 14 0 AMENDMENT TO EASEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § KNOW ALL MEN BY THESE PRESENTS: WHEREAS, by instrument dated May 2, 1977, recorded under County Clerk's File No. F151757, Film Sequence Code 165 -20 -1015, et seq. in the Real Property Records of Harris County, Texas ( "the Instrument "), Exxon Corporation, now Exxon Mobil Corporation ( "Grantor "), granted the City of Baytown ( "Grantee ") a right of way and easement for the purpose of laying, constructing, maintaining, operating, altering, replacing and removing a 16- inch pipeline for the transportation of water, and WHEREAS, the location of the center line the right of way was described in Exhibit "A" attached to the Instrument and made a part thereof; and WHEREAS, portions of the pipeline have been reconstructed in different locations and it is the desire of Grantor and Grantee to accurately describe the centerline of the right of way for the entire pipeline; NOW, THEREFORE, Grantor and Grantee agree that Exhibit "A," attached to the Instrument, is replaced with Exhibit "A -1," attached hereto and incorporated herein for all intents and purposes. Such replacement will result in the center line of the right of way for the entire pipeline being described in Exhibit "A -1." Grantor and Grantee agree that all of the terms and provisions of the Instrument shall remain in full force and effect as therein written, except as expressly provided herein. EXECUTED this f day of , 2005. EXXON MOBIL CORPORATION By: Chris W. Erickson Agent and Attorney in Fact CITY OF BAYTOWN Calvin Mundinger • Mayor Amendment to Easement, Page 1 EMI' A r: STATE OF TEXAS § COUNTY OF HARRIS § Q � J This instrument was acknowledged before me on 0 ' ►'-� I , 2005, by Chris W. Erickson, as Agent and Attorney in Fact of Exxon Mobil C6poration, on behalf of said corporation. Janet W. Fle# t Notary Public, State of Texas N `• ' M, Commission Expires �' .:;•, JULY 11, 200 STATE OF TEXAS § COUNTY OF HARRIS § of Texas ion expires: This instrument was acknowledged before me on AM, by Calvin Mundinger, as Mayor of the City of Baytown, on behalf of said City. Notary Public, State of Texas My commission expires: GRANTOR'S ADDRESS: EXXON MOBIL CORPORATION ATTN:P.G. MCDIVITT P.Q. BOX 2567 HOUSTON, TX 77252 -2567 RETURN TO GRANTEE: CITY OF BAYTOWN OFFICE OF THE CITY CLERK P. 0. BOX 424 • BAYTOWN, TEXAS 77522 -0424 Amendment to Easement, Page 2 • EXHIBIT "A -1" STATE OF TEXAS) COUNTY OF HARRIS) DESCRIPTION of a centerline easement for an existing 16" waterline over and across Exxon's Baytown Refinery properties in the William Scott Upper League, Abstract 66, Harris County, Texas. Said centerline is more particularly described by the following metes and bounds, to -wit: NOTE: BEARINGS AND COORDINATES ARE BASED ON EXXON BAYTOWN REFINERY COORDINATE SYSTEM AND SAID COORDINATES ARE HEREINAFTER REFERRED TO AS PLANT COORDINATES. REFERENCE IS MADE TO PLAT OF EVEN DATE ACCOMPANYING THIS METES AND BOUNDS DESCRIPTION. BEGINNING at a point called to be in the Northeast right -of -way line of existing Bayway Drive. Said point having a Plant Coordinate of N= 4859.605 and W= 8979.896. Said point being in a curve to the left, concave Northerly. THENCE: Along and around said curve to the left, in an Easterly direction, said curve having a radius of 726.05, a central angle of 13 °29'45" and a chord bearing and distance of South 57'27'17" East 170.63 feet, for an arc length of 171.02 feet to a point for an angle point in said centerline herein described; having a Plant Coordinate of N= 4767.815 and W= 8836.064. THENCE: South 37 °34'37" East along said centerline herein described for a distance of 149.48 feet to a point for an angle point in said centerline herein described. THENCE: South 43 °52'32" East along said centerline herein described for a distance of 360.12 feet to a point for an angle point in said centerline herein described. THENCE: South 45 °47'31" East along said centerline herein described for a distance of 326.89 feet to a point for an angle point in said centerline herein described; having a Plant Coordinate of N= 4161.835 and W= 8261.000. Said point being the BEGINNING POINT of a curve to the right, concave Southerly. THENCE: Along and around said curve to the right, in a Northeasterly direction, said curve having a radius of 285.00 feet, a central angle of 33 °48'36" and a chord bearing and distance of North 62 °43'24" East 165.75 feet, for an are length of 168.18 feet to a point for the TERMINATION POINT of said curve. Said point having a Plant Coordinate of N= 4237.796 and W= 8113.683. THENCE: North 79 °37'36" East along said centerline herein described for a distance of 9.97 feet to a point for the BEGINNING POINT of a curve to the left, concave Northerly; is having a Plant Coordinate of N= 4239.591 and W= 8103.876. • PAGE 2 — CENTERLINE DESCRIPTION 16" WATERLINE. THENCE: Along and around said curve to the left, in a Northeasterly direction, said curve having a radius of 265.75 feet, a central angle of 33 °30'09" and a chord bearing and distance of North 62 °53'35" East 153.19 feet, for an arc length of 155.39 feet to a point for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the left, concave Westerly. THENCE: Along and around said curve to the left, in a Northerly direction, said curve having a radius of 342.59 feet, a central angle of 57 °01'23" and a chord bearing and distance of North 17 °38'44" East 327.06 feet, for an arc length of 340.96 feet to a point for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the right, concave Easterly. Said point having a Plant Coordinate of N= 4621.063 and W= 7868.374. THENCE: Along and around said curve to the right, in a Northerly direction, said curve having a radius of 332.38 feet, a central angle of 29 °59'39" and a chord bearing and distance of North 04 °07'51" East 172.02 feet, for an are length of 174.00 feet to a point for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the left, concave Westerly. Said point having a Plant Coordinate of N= 4792.637 and W= 7855.983. THENCE:, Along and around said curve to the left, in a Northerly direction, said curve having a radius of 249.21 feet, a central angle of 30 °33'05" and a chord bearing and - distance of North 03 °51'08" East 131.32 feet, for an arc length of 132.88 feet to a point for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the right, concave Southerly. Said point having a Plant Coordinate of N= 4923.656 and W= 7847.160. THENCE: Along and around said curve to the right, in an Easterly direction, said curve having a radius of 1586.93 feet, a central angle of 13 °27'33" and a chord bearing and distance of North 79 °06'05" East 371.93 feet, for an arc length of 372.78 feet to a point for the TERMINATION POINT of this curve. Said point having a Plant Coordinate of N= 4993.976 and W= 7481.943. THENCE: Along said centerline herein described as follows: North 85 °49'55" East for a distance of 686.30 feet; North 85 °20'57" East for a distance of 277.43 feet; South 89"34'13" East for a distance of 111.63 feet; said waterline enters the ground near this location; THENCE: North 65'24'18" East along said centerline (beneath the pavement of West Avenue) for a distance of 48.05 feet to a point where said waterline is above ground. is ® PAGE 3 — CENTERLINE DESCRIPTION 16" WATERLINE. THENCE: North 89 °57'09" East along said centerline herein described for a distance of 959.06 feet to a point for an angle point in said centerline. THENCE: North 89'44'07" East along said centerline herein described for a distance of 18.95 feet to a point for the BEGINNING POINT of a curve to the right, concave Southerly. THENCE: Along and around said curve to the right, in a Southerly direction, said curve having a radius of 2.00 feet, a central angle of 90 °01'34" and a chord bearing and distance of South 45 °16'50" East 2.83 feet, for an arc length of 3.14 feet to a point for the TERMINATION POINT of said curve; said waterline enters the ground along the curve. THENCE: South 00 °17'58" East along said centerline herein described (underground) for a distance of 9.08 feet to a point for the BEGINNING POINT of a curve to the left, concave Northerly. THENCE: Along and around said curve to the left, said curve having a radius of 1.99 feet, a central angle of 90 °08'42" and a chord bearing and distance of South 45 °11'42" East 2.82 feet, for an arc length of 3.14 feet to a point for the TERMINATION POINT of said curve. THENCE: North 89 153'53" East along said centerline herein described for a distance-of 14.14 feet to a point for the BEGINNING POINT of a curve to the left, concave Northwesterly. THENCE: Along and around said curve to the left, in a Northerly direction, said curve having a radius of 2.00 feet, a central angle of 89041'14" and a chord bearing and distance of North 44 °44'30" East 2.82 feet, for an arc length of 3.13 feet, to a point for the TERMINATION POINT of said curve. THENCE: North 00 °24'53" West along said centerline herein described for a distance of 8.99 feet to a point for the BEGINNING POINT of a curve to the right, concave Easterly. THENCE: Along and around said curve to the right, in a Northeasterly direction, said curve having a radius of 2.00 feet, a central angle of 90 °00'00" and a chord bearing and distance of North 44 °35'07" East 2.83 feet, for an are length of 3.14 feet to a point for the TERMINATION POINT of said curve; said waterline being above ground at this point. THENCE: North 89 °35'07" East along said centerline herein described for a distance of 13.28 feet to a point for an angle point in said centerline herein described. THENCE: North 89 °58'00" East along said centerline herein described for a distance of 1002.47 feet to a point for the BEGINNING POINT of a curve to the right, concave Southwesterly. • PAGE 4 — CENTERLINE DESCRIPTION 16" WATERLINE. THENCE: Along and around said curve to the right, in a Southerly direction, said curve having a radius of 2.00 feet, a central angle of 88'47'19" and a chord bearing and distance of South 44 125'40" East 2.80 feet, for an arc length of 3.10 feet to a point for the TERMINATION POINT of said curve; said waterline entering the ground along the curve. THENCE: South 00 °02'00" East along said centerline herein described (underground) for a distance of 21.02 feet to a point for the BEGINNING POINT of a curve to the left, concave Northerly. THENCE: Along and around said curve to the left, said curve having a radius of 2.00 feet, a central angle of 88 056'47" and a chord bearing and distance of South 44 °20'55" East 2:80 feet, for an arc length of 3.10 feet to a point for the TERMINATION POINT of said curve. THENCE: South 89 °52'32" East along said centerline herein described for a distance of 45.99 feet to a point for the BEGINNING POINT of a curve to the left, concave Northwesterly. THENCE: Along and around said curve to the left, in a Northerly direction, said curve having a radius of 2.00 feet, a central angle of 90 °19'34" and a chord bearing and distance of North 45 °17' 16" East 2.84 feet, for an arc length of 3.15 feet, to a point for the TERMINATION POINT of said curve. THENCE: North 00 °02'29" West along said centerline herein described for a distance of 15.97 feet to a point for the BEGINNING POINT of a curve to the right, concave Easterly. THENCE: Along and around said curve to the right, in a Northeasterly direction, said curve having a radius of 2.00 feet, a central angle of 90 °29'31" and a chord bearing and distance of North 45'12'17" East 2.84 feet, for an arc length of 3.16 feet to a point for the TERMINATION POINT of said curve; said waterline being above ground at this point. THENCE: North 89 °57'32" East along said centerline herein described for a distance of 1114.06 feet to a point for the BEGINNING POINT of a curve to the right, concave Southwesterly. THENCE: Along and around said curve to the right, in a Southerly direction, said curve having a radius of 2.00 feet, a central angle of 90 100'00" and a chord bearing and distance of South 45 °02'28" East 2.83 feet, for an arc length of 3.14 feet to a point for the TERMINATION POINT of said curve; said waterline entering the ground along this curve. • ® PAGE 5 — CENTERLINE DESCRIPTION 16" WATERLINE. THENCE: South 00 °02'28" East along said centerline herein described for a distance of 15.94 feet to a point for the BEGINNING POINT of a curve to the left, concave Northerly. THENCE: Along and around said curve to the left, said curve having a radius of 2.00 feet, a central angle of 88 015'54" and a chord bearing and distance of South 45 °54'31" East 2.79 feet, for an are length of 3.08 feet to a point for the TERMINATION POINT of said curve. THENCE: North 88 °13'26" East along said centerline herein described (beneath the pavement of San Jacinto Avenue) for a distance of 63.96 feet to a point for the BEGINNING POINT of a curve to the left, concave Northwesterly. THENCE: Along and around said curve to the left, in a Northerly direction, said curve having a radius of 1.00 feet, a central angle of 91 °44'39" and a chord bearing and distance of North 44 °05'45" East 1.44 feet, for an arc length of 1.60 feet, to a point for the TERMINATION POINT of said curve. THENCE: North 00 101'55" West along said centerline herein described for a distance of 16.38 feet to a point for the BEGINNING POINT of a curve to the right, concave Easterly. THENCE: Along and around said curve to the right, in a Northeasterly direction, said curve having a radius of 1.00 feet, a central angle of 90 °00'00" and a chord bearing and distance of North 44 °58'05" East 1.41 feet, for an arc length of 1.57 feet to a point for the TERMINATION POINT of said curve; said waterline being above ground at this point. THENCE: North 89 °58'05" East along said centerline herein described for a distance of 986.24 feet to a point for the BEGINNING POINT of a curve to the right, concave Southwesterly. THENCE: Along and around said curve to the right, in a Southeasterly direction, said curve having a radius of 2.00 feet, a central angle of 91 °37'37" and a chord bearing and distance of South 45 °50'44" East 2.87 feet, for an arc length of 3.20 feet to a point for the TERMINATION POINT of said curve. THENCE: Along said centerline herein described as follows: South 00 °09'46" West for a distance of 62.91 feet; South 16 °45'21" West for a distance of 0.97 feet; South 31 °2755" West for a distance of 269.20 feet to a point where said waterline enters the ground. • PAGE 6 — CENTERLINE DESCRIPTION 16" WATERLINE. THENCE: South 66 °14'41" East along said centerline herein described (beneath the pavement of Baytown Avenue) for a distance of 89.86 feet to a point where said waterline is above ground. THENCE: Along said centerline herein described as follows: South 74 °11'29" East for a distance of 25.88 feet; North 56010'14" East for a distance of 35.37 feet; North 76030'15" East for a distance of 1.54 feet; South 79'43'17" East for a distance of 472.67 feet to a point where said waterline is under ground; said point having a Plant Coordinate of N= 4680.71 and W= 1660.95. THENCE: North 10 °02'57" East along said centerline herein described for a distance of 29.47 feet to a point where said waterline is beneath the pavement of Finley Street; said point having a Plant Coordinate Value of N=4709.73 and W= 1655.81. THENCE: South 73 °50'32" East along said centerline herein described (beneath the pavement of Finley Street) for a distance of 166.37 feet to a point for the BEGINNING POINT of a curve to the left, concave Northerly. THENCE: Along and around said curve to the left, in an Easterly direction, said cur-V6 having a radius of 799.98 feet, a central angle of 11 °38'01" and a chord bearing and distance of South 79 °3932" East 162.15 feet, for an arc length of 162.43 feet to a point for the TERMINATION POINT of said curve and the TERMINATION POINT of said centerline herein described. Said point being in a Southerly extension of the West right - of -way line of Harbor Street (as extended Southerly across Finley Street) and having a Plant Coordinate of N= 4634.319 and W= 1336.489. SURVEYOR'S CERTIFICATE I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the above described waterline description was prepared from an office survey made by me on February 10, 2005, using information provided to Busch Hutchison & Associates, Inc. by client, from a field survey performed by GDS Engineers and that all lines, boundaries, and landmarks are accurately described therein. WITNESS my hand and seal at Baytown, Texas, this the 1 I`h day of February, A. D., 2005. :::: r`•` -gin °,� Ju ne amsey ,.......... ►"3 R istered Professional Land Surveyor No. 4379 .l.ilrNt� all 05- 2671B.fdn.doc {17'�99A437 4���