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Ordinance No. 11,316ORDINANCE NO. 1 1,3 16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS. AUTHORIZING TFI CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A COST- SILARE AOREEMENT WITH CHEDDAR'S CASUAL CAFE, INC.. FOR THE CONSTRUCTION OF OFFSITE UTILITIES TO FACILITATE THE DEVELOPMENT OF RESTAURANTS AND OTHI R P —ETAIL IMPROVEMENTS WITHIN REINVESTMENT ZONE NUMBER ONE. CITY OF BAYTOWN_ ALONG OR NEAR INTERSTATE 10: 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 the City Manager to execute and the City Clerk to attest to a cost -share agreement with Cheddar's Casual Cafe. Inc., for the construction of offsite utilities to facilitate the development of restaurants and other retail improvements within Reinvestment Zone Number One, City of Baytown. along or near Interstate 1 O. 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 or Baytown. A INTRODUCED, READ and PASSED by the affirmative vote of` t City Council of the City of Baytown this the 1 1 h day of March, 201 O. jN:V Tom, ` I_ElC1 A, terk -z. APPR6VE AASS FORM: NACIO RAMIREZ. SR.. City { - orney R.'.lfarenlFiles'.City CoainciI '•Ordinances�2010''.tilarch 11 \Cost SfaaroAgeementfori It iliiiesFievised _ doc . DONCARLOS. M Exhibit "A" AGREEMENT REGARDING THE DESIGN, AND INSTALLATION OF A TWELVE -INCH THE STATE OF TEXAS § COUNTY OF HARRIS § PURCHASE SEWER LINE This Agreement regarding the Design, Purchase and Installation of a Twelve -inch Sewer Line (the "Agreement ") is made and entered into between the CITY OF BAYTOWN (the "CITY "), whose address for purposes hereof is P.O. Box 424, Baytown, Texas 77522, and Cheddar's Casual Cafe, Inc, a Delaware corporation ( "CHEDDAR'S "), whose address for purposes hereof is 2250 W. John Carpenter Freeway, Suite 560, Irving, TX 75063. WITNESSETH: WHEREAS, CHEDDAR'S is currently under contract to purchase that certain land more particularly described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Land "); and WHEREAS, in connection with CHEDDAR'S development of the Land, it will be required to obtain sanitary sewer service, including the installation of a sanitary sewer line which will be twelve inches (12 ") in diameter together with related improvements (the "Project ") for the Land; and WHEREAS, the CITY and CHEDDAR'S are entering into this Agreement for the purpose of identifying the obligations of each with respect to the Project; NOW THEREFORE, both the CITY and CHEDDAR'S, intending to be legally bound and for and in consideration of the mutual promises contained herein and other legal consideration hereby agree as follows: 1.1 Contingency. This Agreement and the CITY's and CHEDDAR'S obligations herein are expressly contingent upon CHEDDAR'S acquiring the Land on or before July 1, 2010. 1.2 Easement. Subject to and upon the terms, provisions and conditions hereinafter set forth, CHEDDAR'S does hereby agree that upon its acquisition of title to the Land, it will grant, sell, and convey unto CITY, and CITY will then accept from CHEDDAR'S, in consideration of the duties, covenants and obligations imposed on each party hereunder, a utility easement above, across, and under certain real property located in Hams County, Texas, which is more particularly described in Exhibit "B," which is attached hereto and made a part hereof for all intents and purposes, (the "Easement "). CHEDDAR'S further Design. Purchase and Installation of a Twelve -inch Sewer line, Page 1 conveys its rights, title and interest in any utility lines and related improvements located or to be located within the Easement area pursuant to this Agreement. Simultaneously with the execution of the Easement by CHEDDAR'S, CHEDDAR'S shall deliver the Required Contribution (defined below) to the City. 2.1 CHEDDAR'S Obligations. In addition to CHEDDAR'S obligations elsewhere in this Agreement, CHEDDAR'S shall have the following obligations: (a) CHEDDAR'S agrees that it will at its own cost and expense employ one or more professional engineers to design the extension of the twelve -inch sewer main on the north side of I -10 approximately 1,000 feet south and such design shall contemplate that the extension be achieved by boring under I -10 at a depth of approximately 15' to the Easement (the "Project "). (b) CHEDDAR'S agrees that the design of the Project shall comply with all laws, rules or regulations of applicable governmental authorities, in order to make the lines described herein above meet or exceed the quality standards set by such applicable governmental authorities. (c) CHEDDAR'S shall be obligated to submit plans and specifications for the construction of the Project (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. CHEDDAR'S agrees that the plans and specifications shall include the construction and installation of the Project. In connection with the design of the Project, CHEDDAR'S shall be the party responsible for making all submittals required. The CITY will be the party responsible for making all submittals required in connection with the permitting for the construction of the Project. (d) Simultaneously with the execution of the Easement by CHEDDAR'S, CHEDDAR'S shall deposit with the CITY cash in the amount of FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) (the "Required Contribution ") as part of its portion of the cost -share of the Project. The Parties understand and agree that this amount together with the value of the Easement conveyed herein totals the difference between the cost of installing the City's larger required line size and the cost of installing the minimum size that would be adequate as determined by the City Engineer to serve CHEDDAR'S development. This payment together with the conveyance of the Easement and the obligations assumed in this Article II shall be CHEDDAR'S sole financial responsibility and/or obligation regarding the construction of the Project. Design. Purchase and Installation of a Twelve -inch Sewer Line, Page 2 (e) At its own cost and expense, CHEDDAR'S shall repair or replace any damage or injury done to any portion of the Project caused by CHEDDAR'S, its officers agents, employees, invitees or visitors within ten (10) days of the date on which damage or injury occurred. If the City Manager of the City of Baytown (the "City Manager ") in his sole reasonable discretion, determines that any portion of the Project is not being repaired and/or replaced in accordance with this Agreement, the City Manager shall so notify CHEDDAR'S in writing and require CHEDDAR'S to perform the identified work forthwith and continue diligently therewith until completion. If more than ten days (10) are required to complete the repair or replacement, then CHEDDARS shall have additional time, not to exceed sixty (60) days to complete the same. If the condition persists after the applicable cure period the City Manager may declare CHEDDAR'S in default and may make any required repairs or replacements at CHEDDAR'S sole cost and expense. It is understood if such repairs or replacements are made by the CITY, CHEDDAR'S agrees to pay the cost thereof to the CITY on demand failing which the same will be a lien on the Land. 2.2 CITY's Oblieations. In addition to the CITY's obligations elsewhere in this Agreement, the CITY shall have the following obligations; however, such obligations shall not arise until after CHEDDAR'S has paid the sum specified in Section 2.1.d and has conveyed the Easement as specified in Section 1.1: (a) After the City Engineer's final approval of the Plans and Specifications submitted by CHEDDAR'S in accordance with Section 2.1.c, the CITY shall be obligated to advertise for bids for the construction of the Project in accordance with all applicable laws. Once a contract is awarded for the Project, the CITY's contractor will begin the construction of the Project in accordance with the approved plans and specifications and continue such construction efforts thereafter in a diligent manner until the Project is completed and accepted by the CITY. (b) Upon request, the CITY shall provide an update on the status of the Project to CHEDDAR'S. (c) After the receipt of the Required Contribution by the CITY and the conveyance of the Easement to the City, the CITY shall pay all costs and expenses of Project construction, 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 in connection with such work. (d) The legal title to the improvements constructed as part of the Project and all appurtenances related thereto shall at all times be vested in the CITY; and CHEDDAR'S shall have no claim thereto. As such, CHEDDAR'S shall have no right or privilege to remove or interfere with any part or portion of the Project. Design. Purchase and Installation of a Twelve -inch Sewer Line, Page 3 3.1 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 in accordance with the Plans and Specifications and acceptance of the Project by the CITY. 3.2 Project Schedule. The CITY shall commence work with respect to the Project as soon as reasonably practicable following receipt from CHEDDAR'S of the Easement and the Required Contribution and shall faithfully prosecute the same to completion. 3.3 Temporary Sewer Hookup. The CITY will facilitate CHEDDAR'S use of the right -of- way for the use of a temporary sewer connection if the Project is not complete by the time that CHEDDAR'S requires use of a sewer connection for its restaurant facility, which is anticipated to be sixty (60) days prior to the scheduled opening. CHEDDAR'S will be responsible for all costs associated with the temporary hookup. IV. 4.1 Non - Waiver. Failure of the either party to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the non - defaulting party 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. 4.2 Default by CHEDDAR'S. The CITY shall have the right to declare CHEDDAR'S 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 CHEDDAR'S: (a) Fails to timely pay the Required Contribution as specified in Section 2.I.d within five (5) days following the acquisition of the Land by CHEDDAR'S; (b) Fails to convey the Easement within five (5) days following the acquisition of the Land by CHEDDAR'S; (c) Defaults in the performance of any other obligation imposed upon CHEDDAR'S hereunder and does not cure the default within fifleen (15) days (unless another period of time is specified herein) after written notice describing the default in reasonable detail has been given CHEDDAR'S or, if the City Manager in his sole reasonable discretion, determines that the default cannot reasonably be cured within the fifteen (15) day period, if CHEDDAR'S does not commence curative work within the fifteen (15) day period and prosecute the work to completion with diligence; Design, Purchase and Installation of a Twelve -inch Sewer Line, Page 4 (d) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (e) Makes any assignment of this Agreement without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the CITY will be relieved of its obligations hereunder and CHEDDAR'S shall not be entitled to any repayment or to reversion of any of the properties conveyed pursuant to Sections 1.1 and 1.2. Additionally, should this Agreement be terminated, the CITY shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the CITY shall be final and binding upon CHEDDAR'S. 4.3 Remedies Cumulative. All rights and remedies of the CITY and/or CHEDDAR'S under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 4.4 Amendments. This agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 4.5 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 contained herein shall be construed in any way so as to waive in whole or part the CITY's sovereign immunity. CHEDDAR'S assumes full responsibility for its obligations under this Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds harmless 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 obligations expressly assumed by CHEDDAR'S hereunder. This release shall apply with respect to CHEDDAR'S work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 4.6 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the CITY and CHEDDAR'S hereby agree that no claim or dispute between the CITY and CHEDDAR'S 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, CHEDDAR'S consents to be joined in the arbitration proceeding if CHEDDAR'S presence Design. Purchase and Installation of a Twelve -inch Sewer Line, Page 5 is required or requested by the CITY of complete relief to be recorded in the arbitration proceeding. 4.7 Assignment. CHEDDAR'S shall not assign this Agreement without first obtaining the written consent of the CITY, which consent shall not be unreasonably withheld conditioned or delayed. 4.8 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 CHEDDAR'S Cheddar's Casual Cafe, Inc. Attn: Joe Mutti 2250 W. John Carpenter Freeway, Suite 560 Irving, TX 75063 4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and CHEDDAR'S and their respective successors and assigns. 4.10 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 4.11 Choice of Law and Venue. 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. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 4.12 Ambiguities. 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. 4.13 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. Design. Purchase and Installation of a Twelve -inch Sewer Line, Page 6 4.14 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 4.15 Headines. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 4.16 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 4.17 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 4.18 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 4.19 Authority. The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. EXECUTED ON this the _ day of , 2010 (the "Effective Date "). CITY OF BAYTO WN By: GARRISON C. BRUMBACK, City Manager ATTEST: LETICIA GARZA, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney Design. Purchase and installation of a Twelve -inch Sewer Line, Page 7 7 EXECUTED ON this the _ day of' .2010. CI IEDDAR'S CASUAL CAFE I Bv: (Signature) (Printed Name) ('title) STATE OF TEXAS e III, COUNTY OF &6 Before me, �I t- {'JV" the undersigned notary public, on this day personally appeared the °�� (�.'ttf `�((lv� 1 of CI IEDDAR'S CASUAL CAFE, INC., on l chalf of such corporation known to me; proved to me on the oath of ; or proved to tile through his /her current :description of identification card or other document issued by the federal government or any state goverrunent that contains the photograph and signature of the acknowledging person; (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he /she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office tills 3 day of I rZIA 2010. 0 Notary Public in and for the State of aue� %� Texas \Nly commission expires: ,E cA : O ab,n l' qA l;arca Filo Canuicn Chcdd u, Cu,o-Shuc .lgrcownt l I (Rmoc.rcd) kcN%,nl( "1.-an d<)c I)e;ian Purchw.c and Installation ol'a Twelve -inch Sewer Line, Page 8 EXHIBIT "A" Legal Description of the Land Beginning at an iron pin located at the intersection of the southern right of way of East Freeway Service Road and the western mitered right of way of San Jacinto Blvd.; thence with said mitered right of way S 57 -02 -14 E for 35.43 feet to an iron pin; thence with the western right of way of San Jacinto Blvd. S 11 -56 -19 E for 61.80 feet to an iron pin; thence along a curve concave to the west having a radius of 350.00 feet, an arc length of 201.58 feet and a chord bearing and distance of S 04 -2246 W for 198.80 feet to an iron pin; thence S 20 -5243 W for 39.75 feet to an iron pin; thence leaving said western right of way and along a new line S 77 -55- 04 W for 253.79 feet to an iron pin; thence N 12 -04 -56 W for 310.88 feet to an iron pin located along said southern right of way of East Freeway Service Road; thence with said southern right of way N 77 -55 -03 E for 306.88 feet to the Beginning containing 2.230 Acres (97.140 Sq. Ft.) more or less. ExW bi+ B NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. UTILITY EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF HARRIS § THAT GRANTOR CHEDDAR'S CASUAL CAFE, INC., owner of the below- described real property, for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) and other good and valuable consideration paid by the GRANTEE herein named, the receipt and sufficiency of which is hereby acknowledged and confessed by GRANTOR, has GRANTED, SOLD and CONVEYED and by these presents does hereby GRANT, SELL and CONVEY unto the GRANTEE CITY OF BAYTOWN, a home -rule municipal corporation, an easement for the construction, installation, maintenance, repair and removal of utilities, including a sanitary sewer line, and drainage lines structures and other related purposes in, along, upon, above, across, and under the real property located in Harris County, Texas, which is more particularly described in Exhibit "A." which is attached hereto and incorporated herein for all intents and purposes (the "Property "). TO HAVE AND TO HOLD the above - described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, together with the rights of ingress and egress to and from said easement for the purpose of constructing, inspecting, repairing, maintaining and removing utility, including a sewer line, and drainage lines, structures and other improvements„ unto GRANTEE, its successors and assigns forever. Notwithstanding the grant contained herein, Grantor retains the right to use the surface area of the Property for any and all purposes which do not conflict or interfere with the rights granted herein. Utility Easement Page 1 GRANTOR agrees to bind itself, its successors and assigns to WARRANT and FOREVER DEFEND, the said property unto the said GRANTEE, CITY OF BAYTOWN, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. EXECUTED this the day of , 20_. GRANTOR: CHEDDAR'S CASUAL CAFE, INC. JOE MUTTI Title STATE OF TEXAS § COUNTY OF HARRIS § Before me, the undersigned notary public, on this day personally appeared Joe Mutti, the of Cheddar's Casual Cafe, Inc., the owner of the above- described property, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this day of , 20_. Notary Public in and for the State of Texas My commission expires: GRANTOR'S ADDRESS: CHEDDAR'S CASUAL CAFE, INC. ATTN: JOE MUTTI 2250 W. JOHN CARPENTER FREEWAY, SUITE 560 IRVING. TX 75063 RETURN TO GRANTEE: CITY OF BAYTOWN ATTN: CITY CLERK P.O. BOX 424 BAYTOWN. TX 77522 cob 1'drgal Kum fdl Cmvaas Cheddars CwI -Sham Aprc nOUtilnp Easeeaml flan dx Utility Easement, Page 2 EXHIBIT "A" PROPOSED 20 FOOT WIDE SANITARY SEWER EASEMENT Commencing at an iron pin located at the intersection of the southern right of way of East Freeway Service Road and the western mitered right of way of San Jacinto Blvd.; thence with southern right of way of East Freeway Service Road, S 77 -55 -03 W for 294.88 feet to a point being the Point of Beginning. Thence leaving said right -of- -way, S 12 -04 -56 E for 57.50 feet to a point; thence S 77 -55 -03 W for 20.00 feet to a point; thence N 12 -04 -56 W for 57.50 feet to a point located on the southern right of way of East Freeway Service Road; thence along said southern right -of -way, N 77 -55 -03 E for 20.00 feet to the Point of Beginning. Said tract contains 0.026 acres (1,150 sq. ft.). more or less.