Ordinance No. 11,276ORDINANCE NO. 11,276
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS.
APPROVING THE INTERLOCAL AGREENIEIV "I- BETWEEN THE BAYTO�VN
AREA WATER AUTHORITY AND HARRIS COUNTY FOR UTI1-1 "17Y
RELOCATIONS TO ACCOMMODATE I- LARRIS COUN -1 -Y'S WIDENING OF
TI- tOMPSON ROAD: AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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WHEREAS_ the staff of BA`VA has indicated that it will recon-imend to the Board of Directors of
BAWA that it enter into an interlocal agreement «ith Harris County for utility relocations to
acconimodate Harris County's -,videninQ of Thompson Road in an estimated amount of Tt tREE
MJNDRED EIGHTY -TWO THOUSAND FOUR 1- IUNDRED FOUR "PEEN AND 25/100 DOLLARS
(5382,414.25); and
WHEREAS. the legislation creating the Baytown Area Water A Lit h01 -ity ("BAWA ") requires that
the City Council of the City of Baytown approve contracts entered into by BAWA: and
%VHEFREAS. the City Council of the Cite of Baytown believes that such contract is desirable, fair,
and advantageous, for the performance of the BAWA's rights and powers: NONV THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF "I-HE CITY OF Br- 'XYTOWN_ TEXAS:
Section 1: That the City Council of the City of Baytown_ Tetas, hereby approves the
interlocal agreement bet%,%,-een the Baytown Area Water Authority and Harris County for utility_ relocations
to accorniiiodate Harris County's widening of Thompson Road_ which is attached hereto as Etihibit "A-
and incorporated herein for all intents and purposes.
Section 2: This ordinance shalt take effect irnrriediately
City Council of the City of Baytown.
tNTRODUCED, READ and PASSED by the affrrniative
Baytown this the IOth day of Dcceniber, 2009_ ,
P
0 Wig.
Ier-k
F O RIvI :
ACIO RAMLREZ, SR._ C" , attorney
and after its passage by the
of the City Council of the City of
CARLOS, hjlayor
RAKarerAFiles \City Council\Ordin.tnces\2009 \December 10\ Appro%, enA\ VAUtilit-,,-RelocationContract.doc
Exhibit "A"
AGREEMENT
THE STATE OF TEXAS
COUNTY OF HARRIS
This Agreement, made and entered into pursuant to Tex. Gov't Code Ann. §791.001 et
seq. (Vernon 2004 & Supp. 2008), as amended and Tex. Spec. Dist. Code Ann. §8104.204
(Vernon Supp. 2008), by and between Harris County, a body corporate and politic under the laws
of the State of Texas, hereinafter called "County," and Baytown Area Water Authority, a
conservation and reclamation district in Hams County created under Tex. Const. art. XVI, §59,
hereinafter called "Authority;"
WITNESSETH:
WHEREAS, the County desires to construct Thompson Road from 100 feet north of State
Highway 330 to 800 feet north of Ellis School Road, hereinafter called "County's
Improvements;" and
WHEREAS, the Authority owns and operates various facilities, hereinafter called
"Authority's Facilities," which lie within the above defined limits of Thompson Road; and
WHEREAS, the County has advised the Authority of the County's intention to reconstruct
the County's Improvements, and has requested the Authority to relocate the Authority's Facilities
in order not to interfere with the County's Improvements; and
WHEREAS, the Authority has requested the County to include, at the Authority's
expense, the relocation of the Authority's Facilities as a separate bid item in the County's contract
for the construction of the County's Improvements; and
WHEREAS, the County is willing to include the relocation of the Authority's Facilities in
the County's contract for the construction of the County's Improvements, provided the Authority
pays for the relocation of the Authority's Facilities; and
WHEREAS, the estimated cost of the relocation of the Authority's Facilities is
$382,414.25, which includes $24,093.00 for engineering and $17,062.92 for administrative
expenses; and
WHEREAS, the County has prepared drawings and specifications for the construction of
the County's Improvements and for the relocation of the Authority's Facilities, which have been
reviewed and approved by the Authority; and
WHEREAS, the County is willing to take competitive bids for the construction of the
County's Improvements and for the relocation of the Authority's Facilities;
NOW, THEREFORE, the County and the Authority, in consideration of the mutual
covenants and agreements herein contained, do mutually agree as follows:
I
After the County advertises for bids for both the construction of the County's
Improvements and the relocation of the Authority's Facilities, in accordance with the plans and
specifications therefor, which instruct the bidders to submit separate bids for the cost of
relocation of the Authority's Facilities and the construction of the County's Improvements, the
County will receive and tabulate said bids. After receipt and tabulation of the bids for the
construction of the County's Improvements and the relocation of the Authority's Facilities, the
County Commissioners Court will determine the lowest and best bid for both the construction of
the County's Improvements and the relocation of the Authority's Facilities. The County
Commissioners Court's determination of the lowest and best bidder is final and conclusive. The
County may reject all bids and re- advertise for bids. The County will notify the Authority of the
amount of the lowest and best bid attributable to the relocation of the Authority's Facilities.
If the portion of the lowest and best bid attributable to the relocation of the Authority's
Facilities, as determined by the County Engineer, is less than or equal to $341,258.33, then and
in that event, the Authority, within forty -five (45) calendar days after receipt of said notification
as to the amount of the lowest and best bid attributable to the relocation of the Authority's
Facilities, will transmit to the County a check, made payable to Harris County, in said amount, as
determined by the County Engineer, plus the following: (i) 5% of said amount for administrative
expenses, and (ii) a fixed fee of $24,093.00 for related engineering services.
If the portion of the lowest and best bid attributable to the relocation of the Authority's
Facilities, as determined by the County Engineer, is in excess of $341,258.33, then and in that
event, the Authority, within forty -five (45) calendar days after receipt of said notification as to
the amount of the lowest and best bid attributable to the relocation of the Authority's Facilities,
must perform in accordance with one of the following two (2) options:
a. Authority may pay the County the amount of said portion of the lowest and best bid
attributable to the relocation of the Authority's Facilities, as determined by the County Engineer,
plus the following: (i) 5% of said amount for administrative expenses, and (ii) a fixed fee of
$24,093.00 for related engineering services, in which event the County may proceed in
accordance with Paragraph IV below.
b. Authority may pay the County, for engineering services, the fixed fee in the amount of
$24,093.00, and will proceed to make its own arrangements for the construction of its facilities in
a timely manner that does not delay the County's Improvements, in which event the County will
have no further obligation hereunder, other than making available to the Authority the plans and
specifications for the relocation of the Authority's Facilities.
IV
Within sixty (60) days after receipt of said funds from the Authority pursuant to
Paragraphs H or III (a) above, the County may, subject to Paragraph XIV below, let the contract
for the construction of the County's Improvements and for the relocation of the Authority's
Facilities, to the lowest and best bidder, in accordance with the usual and customary procedures
of the County, subject to certification of the availability of funds for the County's Improvements
by the County Auditor. The County reserves the right to decline to award the contract to all
bidders, in which event, the County, in its sole discretion, may either re- advertise for bids
pursuant to the same understanding with regard to rejection of bids or terminate this agreement as
hereinabove provided.
V
If the County lets a contract pursuant to Paragraph 1V above, the County will (i) inspect
the construction of the County's Improvements and the relocation of the Authority's Facilities in
2
a manner similar to that of other County construction projects, and (ii) through its contractor,
relocate the Authority's Facilities in accordance with the drawings and specifications approved
by the Authority. The County is not obligated to expend any County funds to relocate the
Authority's Facilities. The County Engineer may make minor changes in the drawings and
specifications that he deems necessary or desirable during the construction of the County's
Improvements and relocation of the Authority's Facilities, so long as the changes do not affect
the scope of the work involved in the relocation of the Authority's Facilities.
VI
During the relocation of the Authority's Facilities, the Authority has the right of access to
the construction site and has the right to review all documents, maps, plats, records, photographs,
reports or drawings affecting said relocation, provided, however, Authority shall give notice by
telephone to the Harris County Engineer prior to any inspection of either the site or documents
and provided further that in conducting said inspections, Authority shall not interfere with the
work in progress.
VII
During the construction of the County's Improvements or relocation of the Authority's
Facilities, should the County deem it necessary, through changes in contract with the County's
contractor or otherwise, to perform any relocation of the Authority's Facilities over and above
that which the County initially advertised, or for which the County accepted bids, or on which the
County's contractor based its bid, then and in any of those events, the County will determine the
estimated cost of such additional relocation work and notify the Authority of such amount.
Within forty-five (45) calendar days after receipt of said notification, the Authority will transmit
to the County a check, made payable to Harris County, in said amount, as determined by the
County Engineer, plus the following: (i) 5% of said amount for administrative expenses, and (ii)
10% of said amount for related engineering services.
VIII
The County may terminate this Agreement at any time, with or without cause, by written
notice to Authority, and the County will have no obligation hereunder other than to return to
Authority the unexpended funds paid to County, if any, by Authority pursuant to this Agreement.
If the County elects to terminate this Agreement pursuant to this paragraph, any interest earned
on said funds paid to County by Authority pursuant to this Agreement, becomes the sole property
of the Authority. If the County has not awarded the contract to the lowest and best bidder within
one (1) year from the execution of this Agreement by the Authority, then and in that event, the
Authority may terminate this agreement, and the County will have no obligation hereunder other
than to return to the Authority the unexpended funds paid to County, if any, by Authority
pursuant to this Agreement, together with any interest earned on said funds.
IX
The Authority or its authorized representatives has the right to review and audit all books,
records, vouchers and documents of whatever nature related to the County's performance under
this agreement, during the period of performance of the agreement and for three years thereafter,
or for so long as there exists any dispute or litigation arising from this agreement. The County is
not responsible for the cost of the duplication.
X
The sole obligation of the Authority is to provide funding for the relocation of the
Authority's Facilities as provided by the terms of this agreement. The County is not responsible
for the maintenance or condition of the Authority's Facilities. Upon completion of construction
of the County's Improvements and the relocation of the Authority's Facilities, the Authority shall
assume full ownership of and responsibility for the maintenance and repair of such Authority
facilities to the extent and in the same manner as other like facilities within the Authority.
XI
Upon completion of construction of the County's Improvements and the relocation of the
Authority's Facilities, the County Auditor will determine the total cost to the County for the
relocation of the Authority's Facilities, and the County will notify the Authority of such amount.
If the actual cost to the County of the relocation of the Authority's Facilities exceeds the amount
or amounts previously paid to the County by the Authority, then the Authority will pay the
amount of such excess to the County. If the actual cost to the County of relocating the
Authority's Facilities is less than the amount or amounts previously paid to the County by the
Authority, then the County will refund to the Authority the excess amount paid by the Authority
to the County over and above the actual cost thereof. Any amount due and payable under this
paragraph will be paid within sixty days after completion of the work or thirty days after the
County notifies the Authority of the amount of the actual cost, whichever is sooner. After receipt
by the County of a written request from the Authority, the County shall furnish the Authority a
copy of the record drawings and specifications for the relocation of the Authority's Facilities,
provided, however, the County has no obligation to furnish said record drawings and
specifications to the Authority so long as any money owed by the Authority to the County under
this agreement has not been received by the County. Upon completion of the construction of the
County's Improvements and the relocation of the Authority's Facilities, the Authority is assigned
any rights the County may have against the contractor, the design engineer and the surety on the
contractor's performance bond, which relate to the relocation of the Authority's Facilities.
XII
No party hereto shall make, in whole or in part, any assignment of this Agreement or any
obligation hereunder without the prior written consent of the other parties hereto.
Xlil
All notices and communications directed to the parties under this Agreement shall be
mailed by certified mail, return receipt requested, or delivered at the following addresses:
If to the Authority: Baytown Area Water Authority
2123 Market Street
P. O. Box 424
Houston, Texas 77522
Attention: Mr. Garrison C. Brumback, General Manager
If to the County: Harris County
Public Infrastructure Department
1001 Preston Avenue, 7th Floor
Houston, Texas 77002 -1893
Attention: Mr. Arthur L. Storey, Jr., P.E., Executive Director
Any notice given hereunder is deenled given upon deposit of such in the United States \Mail.
XIv
Notwithstanding anything herein to the contran, or that may be construed to the contrary.
the County has no funds specifically allocated to performing its obligations hereunder, and the
County is under no obligation to expend any tinuis other than and except to the extent of those
funds that the Count), may. In its sole discretion, make available.
Xv
This instrument contains the entire Agreement between the parties relating to the rights
eramed and the obligations assumed herein. ,Knv modifications concerning this instrument are of
no farce and effect excepting a subsequent modification in writing, signed by all parties hereto.
\VI
This agreement has no force or effect until it has been approved by the City Council of
the City of Baytown. pursuant to in ordinance of the City of' Baytown so authorizing, as
evidenced by a copy ofsaid ordinance attached hereto and made it part hereof.
IN TESTIMONY OF WHICH. this :agreement, in duplicate originals, each lim7ing equal
force Ims been executed on behalfof the parties hereto as follows, to wit:
a. It has on the day of 2009, been executed by the
County Judge of Ilarris County, on behalf of the County pursuant to in Order of` the
Commissioners Court of the Count \' so authorizing-.
b. It has on the day of 2009. been executed by the
General \Manager of Baytown Arca water Authority, and attested to by the Secretary of Slid
Authority, pursuant to a resolution of the Board of Directors ofsaid Authority so authorizing.
API'IZOVED AS TO FM M:
V NCE RYAN
County Attorney
HARRIS COUNTY
By By
WILLIAM R. B tUY •I M' ED EIMIME.TT
Senior .Assistant County Attorney County . Judge
G13A1' 1' 0\�'NAREA\\'.1TER:1U'1'11012ITY 09RPD0197
ATTEST:
Secretary
BAYTOWN AREA WATER AUTHORI'T'Y
By
GARRISON C. BRUT MBACK
General INI:uu►ger
THE STATE OF TEXAS §
COUNTY OF HARRIS §
The Commissioners Court of Harris County, Texas, convened at a meeting of said Court
at the Harris County Administration Building in the Baytown Area Water Authority, Texas, on
the day of 2009, with the following members present,
to -wit:
Ed Emmett
County Judge
El Franco Lee
Commissioner, Precinct No. I
Sylvia R. Garcia
Commissioner, Precinct No. 2
Steve Radack
Commissioner, Precinct No. 3
Jerry Eversole
Commissioner, Precinct No. 4
and the following members absent, to -wit:
constituting a quorum, when among other business, the following was transacted:
ORDER AUTHORIZING EXECUTION OF AGREEMENT BETWEEN
HARRIS COUNTY AND THE BAYTOWN AREA WATER AUTHORITY
FOR THE CONSTRUCTION OF PAVING AND DRAINAGE
IMPROVEMENTS FOR THOMPSON ROAD FROM 100 FEET NORTH OF
STATE HIGHWAY 330 TO 800 FEET NORTH OF ELLIS SCHOOL ROAD
Commissioner introduced an order and made a motion that the
same be adopted. Commissioner seconded the motion for adoption of
the order. The motion, carrying with it the adoption of the order, prevailed by the following vote:
Yes No Abstain
Judge Emmett
❑
❑ 0
Comm. Lee
❑
❑ ❑
Comm. Garcia
0
0 ❑
Comm. Radack
0
0 ❑
Comm. Eversole
0
❑ 0
The County Judge thereupon announced that the motion had duly and lawfully carried
and that the order had been duly and lawfully adopted. The order thus adopted follows:
WHEREAS, Harris County ( "County ") desires to construct Thompson Road from 100
feet north of State Highway 330 to 800 feet north of Ellis School Road, hereinafter called
"County's Improvements;" and
WHEREAS, the Baytown Area Water Authority ( "Authority ") owns and operates various
facilities, hereinafter called "Authority's Facilities," which lie within the above described limits
of Thompson Road; and
WHEREAS, the County has advised the Authority of the County's intention to reconstruct
the County's Improvements, and has requested the Authority to relocate the Authority's Facilities
in order not to interfere with the County's Improvements; and
WHEREAS, the Authority has requested the County to include, at the Authority's
expense, the relocation of the Authority's Facilities as a separate bid item in the County's contract
for the construction of the County's Improvements; and
WHEREAS, the County is willing to include the relocation of the Authority's Facilities in
the County's contract for the construction of the County's Improvements, provided the Authority
pays for the relocation of the Authority's Facilities; and
WHEREAS, the estimated cost of the relocation of the Authority's Facilities is
$382,414.25, which includes $24,093.00 for engineering and $17,062.92 for administrative
expenses; and
WHEREAS, the County has prepared drawings and specifications for the construction of
the County's Improvements and for the relocation of the Authority's Facilities, which have been
reviewed and approved by the Authority; and
WHEREAS, the County is willing to take competitive bids for the construction of the
County's Improvements and for the relocation of the Authority's Facilities;
NOW, THEREFORE, BE IT ORDERED BY THE COMMISSIONERS COURT OF
HARRIS COUNTY, TEXAS THAT:
Section 1: The recitals set forth in this order are true and correct.
Section 2: County Judge Ed Emmett is hereby authorized to execute, for and on
behalf of Harris County, an Agreement by and between Harris County and Baytown Area Water
Authority for the construction of paving and drainage improvements for Thompson Road from
100 feet north of State Highway 330 to 800 feet north of Ellis School Road, said Agreement
being incorporated herein by reference for all purposes as though fully set forth word for word.
09RPD0197 2